                                                          JOURT Or APPEALS DiV 1
                                                           STATE OF V/ASHINGTC?-;

                                                          2013 APR-I   AH 8:1*5




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            NO. 67409-9-1

                     Respondent,                DIVISION ONE

       v.

                                                UNPUBLISHED OPINION
RAYMEL JABAR CURRY,

                     Appellant.                 FILED: April 1,2013


       Leach, C.J. — Raymel Curry appeals his conviction for second degree

assault.    He contends that the State violated his Sixth Amendment right to

counsel when a psychologist questioned him without his counsel at an intake

interview incident to his admission to Western State Hospital for a psychiatric

evaluation.   Because the psychologist did not deliberately elicit any statement

about the crime charged in the intake interview, we reject this claim. Curry also

challenges several proposed jury instructions. Because his case was tried to the

court, we also reject these challenges and affirm.

                                     FACTS


       On September 17, 2010, Raymel Curry assaulted a passenger exiting a

King County Metro bus. Before the assault, Curry had been loud and disruptive,
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talking, cursing, and rapping aloud to himself. The bus's security cameras made

an audio and video recording of this behavior. The video footage shows Curry

yelling and making menacing hand gestures at the cameras and threatening the

victim.    As the victim exits the front door of the bus, Curry exits behind him,

punches him, and runs away.

          The State charged Curry with second degree assault, and Curry asserted

an insanity defense.    Pursuant to a court order, Western State Hospital (WSH)

admitted him for psychiatric evaluation on February 23, 2011. A multidisciplinary

team of mental health providers, led by Dr. Amber Simpler, conducted an intake

assessment with Curry on February 24.         This interview allows the doctors to

develop a working diagnosis of the patient's mental condition and to identify

safety concerns for the patient and staff. Simpler asked Curry standard intake

questions about his social history, substance abuse, and psychiatric and medical

history, as well as specific questions about symptoms of psychosis, such as

paranoia and hallucinations. Curry indicated that while he used several different

drugs, his favorite was sherm, a type of tobacco or marijuana cigarette dipped in

formaldehyde or PCP (phencyclidine).      He stated that he usually smoked four

"sticks" a day and that he had a special ability to hear other people's thoughts

that only occurred when he was high on sherm. Simpler did not ask Curry about

any details of the crime, and Curry did not volunteer any.

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      The court-ordered forensic evaluation took place on March 9 with Curry's

defense counsel present.     Simpler also conducted that evaluation, which her

supervisor, Dr. Ray Hendrickson, attended.         To prepare for the forensic

evaluation, Simpler reviewed a copy of the discovery materials.          She then

realized that some overlap existed between WSH's standard intake questions

and the specifics of Curry's intoxication on the day of the attack.     During the

forensic evaluation, Simpler asked Curry focused questions about his sherm use

on the day of the assault and how it affected his thinking at the time. Her final

forensic mental health report concluded,

      Mr. Curry reported he smoked two dipped cigarettes or "sherm"
      within two hours of getting on the Metro bus. He related he
      experienced hallucinations on the bus in the form of hearing the
      victim's thoughts that he perceived as threatening. Mr. Curry
      related these hallucinatory experiences only occur when he has
      smoked sherm. Because his hallucinations are directly induced by
      his voluntary ingestion of sherm, it would appear that insanity as a
      defense is not a viable strategy for Mr. Curry at this time.

      Curry moved to dismiss the charges or suppress Simpler's report and

testimony. Simpler and Hendrickson testified at the hearing. Simpler stated that

the drug use questions are necessary for safety concerns and that she could not

have avoided them at the intake, even if she had known that drug use was an

issue in the crime.   She also testified that in writing her forensic report, she

considers all of the information gathered during the patient's stay, including both

the forensic evaluation and the intake assessment. She noted that based solely
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upon the March 9 interview, she would have reached the same conclusion about

Curry's mental state. Hendrickson agreed that a psychologist reviews all aspects

of the patient's behavior during the commitment as part of a final evaluation. The

court denied the motion, and the case proceeded to a bench trial. Hendrickson

testified for the State, and the court convicted Curry of assault. He appeals.

                            STANDARD OF REVIEW


      We review a trial court's decision on the admissibility of evidence under an

abuse of discretion standard. The trial court's decision will be upheld unless it is

manifestly unreasonable or is based upon untenable grounds or reasons.1 The

trial court's credibility determinations are not subject to review on appeal.2

However, whether a proceeding is a "critical stage" is a question of law subject to

de novo review.3 Likewise, whether the State deliberately elicited incriminating

statements from Curry is also a legal question, which we review de novo4

                                    ANALYSIS


       To prevail on his Sixth Amendment claim, Curry must demonstrate two

things—that the intake interview constituted a "'critical stage of the proceedings'"

and that the psychologist who questioned him at the intake interview


       1State v. Stenson. 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
       2 In re Pers. Restraint of Benn. 134 Wn.2d 868, 910, 952 P.2d 116(1998).
       3 State v. Irbv. 170 Wn.2d 874, 880, 246 P.3d 796 (2011).
       4 State v. Evervbodvtalksabout. 131 Wn. App. 227, 237-38, 126 P.3d 87
(2006), rev'd on other grounds. 161 Wn.2d 702, 166 P.3d 693 (2007).
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NO. 67409-9-1 / 5




"'deliberately elicited'" information about the crime charged.5        Because the

psychologist did not deliberately elicit information about the crime charged, we

reject Curry's claim without deciding if the intake interview was a critical stage of

the proceeding.

       Curry pleaded not guilty by reason of insanity. To establish an insanity

defense, the defendant must prove by a preponderance of the evidence that

       [a]t the time of the commission of the offense, as a result of mental
      disease or defect, the mind of the actor was affected to such an
       extent that:
          (a) He was unable to perceive the nature and quality of the act
      with which he is charged; or
          (b) He was unable to tell right from wrong with reference to the
       particular act charged.[61
Under RCW 10.77.030, "[n]o condition of mind proximately induced by the

voluntary act of a person charged with a crime shall constitute insanity." This

includes mental conditions brought about by voluntary intoxication.7

       When a defendant claims insanity, the State may require him to submit to

an expert psychiatric evaluation.8 That occurred here. Curry contends that the



       5 Evervbodvtalksabout. 161 Wn.2d at 709.
       6 Former RCW 9A. 12.010 (1975).
       7According to former RCW 9A.16.090 (1975),
        No act committed by a person while in a state of voluntary
        intoxication shall be deemed less criminal by reason of his
        condition, but whenever the actual existence of any particular
        mental state is a necessary element to constitute a particular
        species or degree of crime, the fact of his intoxication may be
        taken into consideration in determining such mental state.
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NO. 67409-9-1 / 6




intake interview before his formal psychiatric evaluation at WSH violated his Sixth

Amendment right to counsel.     He claims that the psychologist who questioned

him, Simpler, deliberately elicited information about the crime during the intake.

We disagree.

       Once the constitutional right to counsel has attached, the State violates

the Sixth Amendment only when the State "deliberately elicit[s]" incriminating

statements from the individual in defense counsel's absence.9 The State does

so when it purposely stimulates conversation about the crime.10 In the intake
interview, Simpler asked Curry about his past and present mental and physical

health and about his past and present drug use. She asked follow-up questions

about every drug Curry said he had used, including sherm, MDMA, cocaine, and

hallucinogenic mushrooms. Curry volunteered that sherm was his favorite drug

and that when he was high on sherm, he believed that he could hear people's

thoughts.   He denied experiencing any other auditory or visual hallucinations.

Curry makes no claim that Simpler questioned him about the crime during the

intake interview.




       8 State v. Hutchinson. 135 Wn.2d 863, 878, 959 P.2d 1061 (1998)
(Hutchinson III).
      9 Massiah v. United States. 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L. Ed.
2d 246 (1964); Evervbodvtalksabout 161 Wn.2d at 708-09.
      10 Evervbodvtalksabout, 161 Wn.2d at 708-09.
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       The trial court found some overlap in the information gained during the

intake interview and the subsequent forensic evaluation but also found that

Simpler asked the intake questions for valid safety purposes. Additionally, the

court found that she did not ask about or intentionally encourage Curry to discuss

any details of the crime charged. We agree with this assessment. The intake

interview here was not an adversarial proceeding, and Simpler did not elicit or

receive any information about the specifics of the crime.11 The State's actions

did not violate Curry's Sixth Amendment right, and the trial court did not abuse its

discretion by denying Curry's suppression motion.

       In a statement of additional grounds, Curry challenges the court's failure to

provide jury instructions. However, the parties tried this case to a judge without a

jury. "In a bench trial, no jury instructions are required."12 Indeed, there is no jury

to instruct. Thus, Curry's claims fail.




       11 In fact, Simpler did not realize that Curry's drug use played a role in the
crime until the day before the forensic evaluation when she received a copy of
the discovery information and the defense expert's report.
       12 In re Pers. Restraint of Heidari. 159 Wn. App. 601, 609, 248 P.3d 550
(2011), affd, 174 Wn.2d 288, 274 P.3d 366 (2012).
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NO. 67409-9-1/8




                                  CONCLUSION


       Because Simpler did not deliberately elicit information about the assault

during Curry's intake interview, his Sixth Amendment challenge fails.       Because

Curry elected a bench trial, the court did not require jury instructions. We affirm.




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WE CONCUR:




                                                            czrf,J.




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