                                                                               FILED 


                                                                        January 30, 2014 


                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DMSION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 29075-1-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
DAVID EUGENE RICHARDS,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, A.C.J. -     David Richards appeals his conviction of second degree

felony murder and first degree manslaughter. He makes six assignments oferror and

argues, alternatively, that cumulative error denied him a fair trial. He alleges additional

errors in a pro se statement of additional grounds.

       We find no reversible or cumulative error and affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Michelle Kitterman was found murdered on March 1, 2009, on the side of a road,

about 14 miles from her home in Tonasket. At the time she was killed, she was 11 weeks

pregnant with the child ofDaniel Pavek. Investigation would lead the Okanogan County

prosecuting attorney to charge four individuals with what the State concluded was a

murder for hire: it charged Lacey Hirst, Pavek's wife, who knew her husband was
No. 2907S-I-II1
State v. Richards


having an affair with Kittennan and wanted her killed; Tansy Mathis, a drug dealer,

whom Hirst knew and enlisted to arrange for the murder; David Richards, also a drug

dealer and a customer of Mathis, whom Mathis enlisted; and Brent Phillips, whom

Richards enlisted. Phillips eventually pleaded guilty to first degree premeditated murder

and other crimes and testified against Richards and Mathis at trial.

       Phillips testified that at the time of the murder, he was living with Richards in

Spokane. Richards was providing him with housing and methamphetamine in exchange

for Phillips serving as Richards's "tax man." Report of Proceedings (RP) at 793. He

testified that as Richards's "tax man," he would "[use] force or scare tactics to get the

money that's owed to him." Id.

       Phillips was introduced to the crime being planned against Kittennan on the day

before she was murdered, when Richards told Phillips that he needed someone to travel

with him and Mathis "to go pick up dope, and that there was a snitch that might need to

be taxed," meaning a police informant who needed to be intimidated. RP at 797. When

the time came to leave for Okanogan County, though, Richards was asleep (or, as Phillips

later testified, was "faking a sleep," RP at 804), so only Phillips accompanied Mathis,

who was driving a rental car Hirst had made available for the crime. A friend of

Richards's would testify that Richards told her he learned that the plan, in which he was

supposed to participate, was to intimidate a woman pregnant with a married man's child




                                              2

No. 29075-1-II1
State v. Richards


with the objective of aborting the baby, and for that reason he decided to stay in Spokane

instead.

       Before Mathis and Phillips left Spokane, Mathis told Phillips that they would

receive $1,000 to beat up the snitch and an additional $500 if anyone else got in the way.

With that understanding, they drove to Kitterman's home. Before entering, Mathis told

Phillips that there could be more money involved-$l 0,000 plus $5,000 for anybody

additional in the way-if things did not go right and someone had to be killed. After the

two were invited in by Kitterman, Phillips offered her methamphetamine, the three

smoked it together, and Mathis then suggested that they all go to a nearby casino.

Kitterman eventually agreed and they all left in the rental car.

       As the three neared the casino, Mathis pulled over because Kitterman wanted to

smoke more methamphetamine and Mathis said she could not do it in the car. Once

Kitterman was out of the car, Mathis told Phillips that Kitterman was the snitch. Phillips

took this as his cue to assault Kitterman. Mathis soon joined him in the assault. She had

retrieved an ice pick-like weapon from the car; it was variously described by witnesses as

an ice pick, a leather punch, or a three-sided file, and it belonged to Richards. Phillips

later testified that it was Richards's favorite weapon. As Phillips choked Kitterman, who

was on the ground, Mathis began stabbing her in the stomach. When Mathis told Phillips

to "finish it," he stabbed Kitterman several times in the back. RP at 826. Phillips threw




                                              3

No. 29075-1-111
State v. Richards


Kittennan to the side of the road and he and Mathis left. After abandoning Kitterman,

Mathis and Phillips cleaned the rental car.

       Before returning to Spokane, Mathis handed Phillips an envelope containing $500

to give to Richards. Phillips told her Richards would prefer methamphetamine, so Mathis

took the money back and gave Phillips drugs to give to Richards.

       Upon Phillips's return to Spokane, Richards asked about payment from Mathis

and indicated awareness that something "had happened." Phillips testified:

       A      He kept asking me what happened. And 1 wouldn't tell him what
              happened. And then 1 ended-he asked me again, he's, "Oh, come
              on, what happened." And 1 told him, 1 said, "Well, the shit
              happened, man; know what 1 meanT'
                     And he said, "Well, when you get ready to tell me, you know,
              I'm here to listen." That's what he said.
      Q       At some point did he ask you for payment?
      A       He asked me if 1 had anything for him, from Tansy. And 1 said,-I
              said "Yeah," and 1 handed him the dope. And he looked at it and he
              said, "This is all?" And 1 said, "Yeah."

RP at 842. Phillips testified that Richards was upset upon seeing the amount of

methamphetamine provided and, after that, was "trying to get a hold of Ms. Mathis."

RP at 843.

       Detectives investigating the murder identified Mathis and Phillips as suspects and

received infonnation that following the murder they returned to Spokane, to a particular

residential address. It turned out to be Richards's residence. Spokane detectives

assisting with the Okanogan investigation went to the address, where Richards answered



                                              4

No. 29075-1-111
State v. Richards


the door and identified himself when asked. When detectives did an NCIC/WASIC 1

check on his name, they learned that there was an outstanding warrant for his arrest for

failure to pay fines; they relied on the warrant to handcuff him and transport him to the

Spokane police department, where they asked him what he knew about the Kitterman

murder. The detectives told him that if he was forthcoming they would release him and

let him take care of the fines and warrant on his own. Because they considered him only

a witness at that point, not a suspect, the detectives did not read Richards his Miranda 2

rights.

          Richards was initially reticent, telling the detectives after being detained for a

couple of hours that he "didn't want to be a snitch." RP at 278. The detectives then

ended the interview and escorted Richards to the jail to book him on the outstanding

warrant. As they approached the jail, Richards stated, "'Okay, I'll talk. Hollywood told

me he did it.'" RP at 279. "Hollywood" was a name used by Phillips. The detectives

took Richards back to the interview room and read him his Miranda rights. At points

during the advisement process, Richards told officers he did not want to "give up his

rights," and "thought he was being blackmailed into talking," but he nonetheless signed a

rights card, was read his rights a second time, and gave a statement denying involvement




          1 National   Crime Information Center and Washington State Information Center.
          2   Miranda v. Arizona, 384 U.S. 436, 444,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                 5

 No. 29075-1-111 

 State v. Richards 



 in the murder. RP at 281. He told detectives that Phillips had admitted having stabbed

 Kitterman several times. The detectives released Richards as promised.

        Phillips was later arrested and interviewed, and claimed that Richards stabbed

 Kitterman. Based on Phillips's statement, the State eventually charged Richards, as a

. principal or accomplice, with aggravated murder or alternatively felony murder, first

 degree manslaughter (unborn quick child), and first degree kidnapping. He was charged

 with deadly weapon enhancements on all counts. By the time of trial, Phillips had

 recanted his accusation that Richards stabbed Kitterman. He testified that Richards had

 not gone to Tonasket with him and Mathis.

        Mathis and Richards were tried together and each testified. Mathis blamed the

 murder on Phillips. She agreed that Richards did not travel to Tonasket and was not

 present when Kitterman was murdered. Richards testified that on the day before

 Kitterman's murder, Mathis had merely asked him to take a road trip with her to pick up

 and deliver drugs. He claimed he never went because he fell asleep. He testified that he

 learned Mathis left for the road trip without him but did not know that Phillips had gone

 with her until Phillips returned to Spokane. He also testified that his ice pick had gone

 missing the day before Kitterman's murder and he had no idea that it was in Mathis's

 possession.

        The State argued that Richards was an accomplice to the murder. The jury was

 instructed that a person who is an accomplice in the commission of a crime "is guilty of

                                              6

No. 29075-1-III
State v. Richards


that crime whether present at the scene or not." RP at 2038 (Instruction 7). Based on the

evidence at trial, the court instructed the jury not only on the charged crimes, but also on

lesser included crimes of second degree murder and second degree felony murder.

       The jury found Richards guilty of second degree felony murder and first degree

manslaughter. It returned special verdicts that he had been armed with a deadly weapon

at the time of the crimes. The parties' appeals were originally consolidated but were later

severed.

                                        ANALYSIS

       Richards assigns error on appeal to the trial court's (I) failure to sever his case

from the prosecution of Mathis, (2) denial of his motion to suppress,3 (3) admitting out­

of-court statements made by an alleged coconspirator as exceptions to the hearsay rule,

(4) admitting evidence of Richards's drug use and dealing, and (5) erroneously

instructing jurors that they must be unanimous to answer "no" to the deadly weapon

special verdict forms. 4

       The last assignment of error is readily addressed. Richards raised it before the

Washington Supreme Court decided State v. Guzman Nunez, 174 Wn.2d 707,285 P.3d



      3 Richards's brief makes two assignments of error to denial of the motion to
suppress that we address together.
       4 Richards argues alternatively that cumulative error denied him a fair trial. In
light of our disposition of his assignments of error, the argument of cumulative error
necessarily fails.

                                              7

No. 29075-1-III
State v. Richards


21 (2012), in which it overruled two prior decisions 5 and found that the pattern jury

instruction used below correctly stated the law. There was no error.

       We address the remaining assignments of error in tum.

                                I. Refusal to Sever/Speedy Trial

       Richards first assigns error to the trial court's refusal to sever his and Mathis's

trials when her request for a continuance delayed trial, thereby allegedly depriving him of

his right to a speedy trial.

       The trial was continued several times. The first continuance was requested by the

State in early November 2009. Richards opposed the continuance, although his lawyer

admitted that his witness list and investigation were not yet completed. The court granted

the State's motion, finding the continuance was necessary in the interests ofjustice for

reasons stated on the record. It continued the trial date to January 12,2010 and, taking

the continuance into account, recalculated the allowable time for trial under erR 3.3 as

continuing until February 11.

       In early January, Mathis moved to continue trial until March after learning that

DNA (deoxyribonucleic acid) testing in response to a request by the State did not include

paternity testing on Ms. Kitterman's unborn child. She also expressed concern that her

experts were not yet prepared to respond to the State's evidence. Richards opposed the


     5 State v. Bashaw, 169 Wn.2d 133,234 P.3d 195 (2010) and State v. Goldberg,
149 Wn.2d 888, 72 P.3d 1083 (2003).

                                              8

No. 29075-1-111
State v. Richards


continuance. The State refused to support any continuance if it would mean a severance

of the Mathis and Richards trials. The court granted a one-month continuance to

February 9, a date still within the allowable time for trial under criminal rules. Richards

acknowledged that he could identifY no prejudice from the short continuance.

       Mathis soon filed a motion to revise the early January ruling, again seeking a two-

month continuance based on a new disclosure by the State ofthird parties who would

testifY that they had felt Kitterman's unborn child kick, in support of an element of the

manslaughter charge. Mathis's lawyer argued that given the II-week gestation period

the testimony was implausible, yet Mathis needed time to get an expert witness to

discredit the testimony. The State, still resisting severance of the Mathis and Richards

trials, argued that if a continuance was granted, Richards's case should also be continued.

       Richards again opposed the continuance, citing, as prejudice, witnesses' fading

memories. The court nonetheless granted the further continuance, finding, among other

supporting facts, "Richards has shown no specific prejudice to the presentation of his

defense if a continuance is granted," "The State intends to call in excess of 50 witnesses

at trial," "A visiting judge is required to hear this case," and "[Due] to the nature of the

charges a large jury pool will need to be called for voir dire." Clerk's Papers (CP) at 322.

Among its conclusions were, "Judicial economy outweighs Defendant Richards['s]

speedy trial date" and, "A continuance is necessary for the administration of [j]ustice."




                                              9

No. 29075-1-111
State v. Richards


Id. Because a March trial date would not work for the State, the court set trial to begin

April 6. The trial proceeded as scheduled in April.

       The granting or denial of a motion for separate trials ofjointly charged defendants

is entrusted to the discretion of the trial court and will not be disturbed on appeal absent a

manifest abuse of discretion. State v. Hoffman, 116 Wn.2d 51, 74, 804 P .2d 577 (1991)

(citing State v. Grisby, 97 Wn.2d 493, 507,647 P.2d 6 (1982)). "Separate trials are not

favored in Washington and defendants seeking severance have the burden of

demonstrating that a joint trial would be so manifestly prejudicial as to outweigh the

concern for judicial economy." Id. (citing State v. Philips, 108 Wn.2d 627,640, 741 P.2d

24 (1987)).

       A codefendant's right to a speedy trial can present manifest prejudice. Article I,

section 22 of the Washington Constitution and the Sixth Amendment to the United States

Constitution both guarantee a criminal defendant the right to a speedy public trial. State

v. Iniguez, 167 Wn.2d 273,290,217 P.3d 768 (2009). By court rule, the State has 60

days to bring a defendant to trial, but that 60-day period does not purport to be the

constitutionally required limitation. CrR 3.3(b)(1); State v. Terrovona, 105 Wn.2d 632,

651, 716 P.2d 295 (1986). A trial court may grant a continuance under CrR 3.3(1)(2)

when a continuance is "required in the administration ofjustice" and the "defendant will

not be prejudiced in the presentation of his or her defense." Such continuances are then

excluded in computing the allowable time for trial. CrR 3.3(b)(5).

                                             10 

       No. 29075-1-III 

       State v. Richards 



i·             Richards cites State v. Torres, III Wn. App. 323,332,44 P.3d 903 (2002) for the

       proposition that "[a]s a general rule, the court should sever to protect a defendant's right

       to a speedy trial." Torres was speaking of severance requested "[w]hen speedy trial and

       consolidation considerations collide," however. Id. It recognized that "the court may

i. 	   proceed with a joint trial, particularly where neither defendant alleges any prejudice in

       presenting a defense" and "[s]everance is not mandatory, except to protect one defendant

       from incriminating out-of-court statements by another." Id.; see State v. Dent, 123

       Wn.2d 467, 484, 869 P .2d 392 (1994) ('" Severance is not mandatory even where a

       defendant's speedy trial rights are at issue'" (quoting State v. Melton, 63 Wn. App. 63,
,
!


       67,817 P.2d 413 (1991))). A defendant requesting severance must be able to point to

       specific prejudice. State v. Sublett, 176 Wn.2d 58, 69, 292 P.3d 715 (2012). He may not

       rely upon any presumption of prejudice by mere lapse of time. State v. Valentine, 20 Wn.

       App. 511, 514, 580 P.2d 1119 (1978).

               Richards failed to point to any specific prejudice. The trial court did not abuse its

       discretion in refusing to sever the cases when it granted Mathis's motion to continue the

       trial date.

                                            II. Motion to Suppress

               Before trial, the State identified a number of statements by Richards that it

       intended to offer at trial; they included statements he had made on the day he was

       arrested on the outstanding warrant for failure to pay fines and taken by detectives to the

                                                     11 

I
J



     No. 29075-I-III
     State v. Richards


     Spokane police department for questioning as a witness. The statements made by

     Richards on that date were treated by the court as falling into three categories. The first

     category was the statements Richards made when he was initially taken to an interview

     room; they concluded with his announcement a couple of hours later that he did not want

     to be a snitch. The second was his allegedly spontaneous statement when being escorted

     to the jail to be booked, that he would talk and "Hollywood did it." The third was the

     formal statement he provided following Miranda warnings after he was taken back to the

     interview room.

            The trial court granted Richards's motion to suppress the statements made during

     the first couple of hours following his arrival at the Spokane police department. While

     the State argues that Richards had not been "formally placed under arrest" and was "not

     ... a suspect, but ... a witness," Br. ofResp't at 37, the trial court found that he had been

     arrested on the outstanding warrant at his home, placed in handcuffs, placed in a police

     vehicle and transported to the police department, and concluded that he was in custody

     and interrogated for purposes of Miranda yet was not read his constitutional rights.

     Miranda did not make a distinction between "suspects" and "witnesses": it recognized

     that "when an individual is taken into custody or otherwise deprived of his freedom by

     authorities in any significant way and is subjected to questioning, the privilege against

     self-incrimination is jeopardized." 384 U.S. at 478; and see Mathis v. United States, 391

     U.S. 1,88 S. Ct. 1503,20 L. Ed. 2d 381 (1968) (Miranda warnings are necessary even if

                                                  12 

No. 29075-1-111
State v. Richards


police are questioning a defendant about an offense different from that for which the

defendant is in custody).

       The trial court denied the motion to suppress statements in the second and third

categories, finding that Richards's statement, "Hollywood did it," made as he approached

the jail, was spontaneous and voluntary and that the statement he provided following

Miranda warnings was made following a knowing, intelligent, and voluntary waiver of

his rights. Richards challenges the trial court's denial of his motion to suppress his

second statement on the basis that the statement was coerced. He challenges the court's

denial of his motion to suppress his third, formal statement on the basis that he invoked

his constitutional rights and should not have been questioned further.

                                    A. "Hollywood Did It"

       The trial court entered the following two findings and one conclusion supporting

its denial of the motion to suppress the second statement challenged by Richards's

motion to suppress:

       [Finding] 7. . .. [S]ometime after the first interview ended, the defendant
              was being transported to the Spokane County Jail by [a detective] on
              the unrelated warrant.
       [Finding] 8. Prior to arriving at the jail, the defendant spontaneously and
              voluntarily stated "I will tell you what I know, I will talk,
              Hollywood did it."

       [Conclusion] 3. The second statement by the defendant ... was 

             spontaneous and freely and voluntarily given and is therefore 

             admissible at trial. 



                                             13 

No. 29075-1-III
State v. Richards


CP at 833-35.

       We review a trial court's findings of fact following a CrR 3.5 hearing for

substantial evidence and review de novo whether the trial court's factual findings support

its conclusions oflaw. State v. Duncan, 146 Wn.2d 166,171,43 P.3d 513 (2002).

Substantial evidence is that which is sufficient to persuade "'an unprejudiced, thinking

mind of the truth of the fact to which the evidence is direct.'" State v. Summers, 107 Wn.

App. 373, 388,28 P.3d 780, 43 PJd 526 (2001) (quoting State v. Hutton, 7 Wn. App.

726, 728, 502 P.2d 1037 (1972)).

      Richards contends that the trial court's finding that his statement was spontaneous

and voluntary was not supported by substantial evidence, arguing that voluntariness was

contradicted by the following facts admitted by the State's witnesses:

      Police informed Richards that ifhe cooperated with their request to interview him,
      they would let him take care of his warrant on his own.

      Richards was not initially advised of his Miranda rights. 


       The officers concluded the interview when Richards stated that he did not want to 

       be a snitch, and began walking him to the jail to book him on the warrant. 


      The police continued to converse with Richards on the walk to the jail, stating, 

      "We consider you a witness and we'd like you to talk to us."

      As they approached the jail, Richards made the statement that Hollywood did it.

See Br. of Appellant at 24-25 (citing RP at 276-79).

      A suspect who is in custody but who is not being "interrogated" does not have

Miranda rights. State v. Warness, 77 Wn. App. 636, 639-40,893 P.2d 665 (1995).

                                            14 

No. 29075-I-III
State v. Richards


"Interrogation" is broad enough to include express questioning and its functional

equivalent, which the United States Supreme Court has defined as "'any words or actions

on the part of the police ... that the police should know are reasonably likely to elicit an

incriminating response from the suspect.'" State v. Wilson, 144 Wn. App. 166, 184, 181

P.3d 887 (2008) (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682,641.

Ed. 2d 297 (1980». The State argues that the requirement that police anticipate an

"incriminating" response is not met here, where Richards was not a suspect, but Innis and

Miranda define "incriminating" broadly. As explained in Innis:

               By "incriminating response" we refer to any response-whether
       inculpatory or exculpatory-that the prosecution may seek to introduce at
       trial. As the Court observed in Miranda:
                       No distinction can be drawn between statements which
               are direct confessions and statements which amount to
               "admission" of part or all of an offense. The privilege against
               self-incrimination protects the individual from being
               compelled to incriminate himself in any manner; it does not
               distinguish degrees of incrimination. Similarly, for precisely
               the same reason, no distinction may be drawn between
               inculpatory statements and statements alleged to be merely
               "exculpatory." If a statement made were in fact truly
               exculpatory it would, of course, never be used by the
               prosecution. In fact, statements merely intended to be
               exculpatory by the defendant are often used to impeach his
               testimony at trial or to demonstrate untruths in the statement
               given under interrogation and thus to prove guilt by
               implication. These statements are incriminating in any
               meaningful sense of the word and may not be used without
               the full warnings and effective waiver required for any other
               statement. 384 U.S. at 476-477.

446 U.S. at 301 n.5.

                                             15 

No. 29075-1-UI
State v. Richards


       "As Miranda clearly indicates, 'interrogation' encompasses much more than mere

question-answer sessions; often the more successful techniques include psychological

tactics and patient maneuverings designed to undermine the suspect's will to resist."

State v. Boggs, 16 Wn. App. 682, 685, 559 P.2d 11 (1977). Any custodial statement is

suspect and the burden is upon the State to demonstrate that such a statement was

"volunteered" in the Miranda sense, i.e., that it was spontaneous and not prompted by

questioning or other action calculated to elicit response. ld. at 685-86 (citing State v.

Toliver, 6 Wn. App. 531,494 P.2d 514 (1972)). The determination ofvoluntariness is

made upon the totality of circumstances surrounding the interrogation. State v. Unga,

165 Wn.2d 95, 100, 196 P.3d 645 (2008) (quoting Fare v. Michael       c., 442 U.S. 707, 724­
25,99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979)). We will not overturn the trial court's

determination that statements were voluntarily or spontaneously made if substantial

evidence in the record supports this conclusion. State v. Aten, 130 Wn.2d 640,664,927

P.2d 210 (1996).

       A promise by police of a benefit if an individual agrees to provide information is

potentially coercive; if it proves coercive, then information provided in response is done

so involuntarily and must be suppressed. As summarized in Unga, 165 Wn.2d at 108:

       "That a law enforcement officer promises something to a person suspected
       of a crime in exchange for the person's speaking about the crime does not
       automatically render inadmissible any statement obtained as a result of that
       promise." [United States v.] Walton, 10 F.3d [1024,] 1028 [3d Cir. 1993].
       "The promise must be sufficiently compelling to overbear the suspect's will

                                              16 

No. 29075-1-111
State v. Richards


       in light of all attendant circumstances." [United States v.] Gurrero, 847
       F.2d [1363,] 1366 [9th Cir. 1988].

       Events leading to this second statement raise an issue of a promised benefit as

coercion: detectives promised not to book Richards in exchange for cooperation; he was

detained for two hours without providing information, ultimately announcing that he did

not want to be a snitch; and the detectives then delivered on the threat implied by their

offer by walking him to jail, reminding him, en route, "'You're a witness,' and 'We

consider you a witness and we'd like you to talk to us.'" RP at 279. The only reasonable

conclusion is that when Richards relented on the jailhouse steps it was the result of his

imminent booking, not some spontaneous, unrelated change of heart. But as our Supreme

Court has pointed out, the causal connection between police conduct and a detainee's

decision to speak required to make a statement involuntary is not "but for" causation;

rather, '''[t]he question [is] whether [the interrogating officer's] statements were so

manipulative or coercive that they deprived [the suspect] of his ability to make an

unconstrained, autonomous decision to confess.'" Unga, 165 Wn.2d at 102 (most

alterations in original) (quoting Miller v. Fenton, 796 F.2d 598,605 (3d Cir. 1986)).

       In initially announcing its findings and conclusions on the admissibility of this

second statement, the trial court considered only the words exchanged between the

detectives and Richards as they arrived at the jail, and observed that "[a] person can say

whatever they want to. The police don't have any control over that." RP at 341. No


                                             17 

No. 29075-I-III
State v. Richards


consideration was given at that point to the coercive effect of a contingently promised

benefit that the detectives were about to withhold. But before the trial court's oral ruling,

Richards had not argued that these were coercive circumstances.

       Notably, when the State later asked the court to make an explicit finding that the

detectives never used threats or coercion, 6 the trial court pointed to the potentially

coercive effect of the promised benefit, observing:

       [T]he timing of Mr. Richards' statement, "Okay, I'll talk,"­

               ... is right as he's being taken to the steps of the jail. And-and
       let's face it; that, by itself, is, for most people, anyway-quite coercive.
       And most people, I think, would feel like, "Okay, I gotta do this if I want to
       avoid jail,"-and, in fact, the-the officers-stuck to their word and they
       let him go.
               So it was only after he talked to them that they let him go. So it's
       sort of self-proving that the threat ofjail in effect was coercive.

RP at 354. The court therefore refused to make the finding requested by the State. But it

did not revisit its decision to admit the second statement.

       The trial court was not presented with any evidence as to how onerous being

booked would have been for Richards, in light of his circumstances. Given that, the

court's belated recognition of potential coercion, and the State's burden of proof, we

cannot say that the trial court's findings of fact support its conclusion that the second




       6The State argued that the finding would entitle it to use all of Richards's
statements, even those suppressed, for impeachment.

                                              18 

 No. 29075-1-111
 State v. Richards


 statement was admissible. We have no problem concluding that the error in admitting

 this second statement was harmless, however.

        Admission of a statement obtained in violation of Miranda can be harmless. State

 v. Reuben, 62 Wn. App. 620, 814 P.2d 1177 (1991). A constitutional error is harmless if

 the appellate court is convinced beyond a reasonable doubt that any reasonable jury

 would have reached the same result in the absence of the error. State v. Guloy, 104

 Wn.2d 412, 425, 705 P .2d 1182 (1985). Under the "overwhelming untainted evidence"

. test employed in Washington, we look at only the untainted evidence to determine ifit is

 so overwhelming that it necessarily leads to a finding of guilt. ld. at 426.

        Detectives had been led to Richards's residence by information that Mathis and

 Phillips, already suspects, had traveled there following the murder. The detectives did

 not view either this second statement or Richards's third, formal statement as suggesting

 that Richards was anything other than a witness, as evidenced by the fact that they let him

 leave the station at the conclusion of the interview. As compared to the State's other

 properly admitted evidence, this second statement by Richards was inconsequentiaL The

 exclusion of the statement would not have resulted in a different verdict.

                                 B. Waiver of Miranda Rights

        The trial court entered the following key findings supporting its denial of the 


 motion to suppress Richards's third, formal statement: 





                                              19
I
i
I
    No. 29075-1-II1
    State v. Richards


           10. 	 The defendant was advised of his constitutional rights in their entirety
                 by Detective [Kip] Hollenbeck. The defendant signed the rights card
                 indicating he understood the rights and wanted to give up his rights
                 and answer questions. (see exhibit #4)
           11. 	 The defendant, at some point, stated to Detective Hollenbeck that he
                 did not want to give up his rights but he wanted to talk. There was no
                 request for a lawyer to be present.
           12. 	 The defendant was then contacted by Detective [Mike] Murray who
                 again advised him of his constitutional rights.
           13. 	 The defendant stated he understood those rights and wanted to talk to
                 the Detectives.
           14. 	 The defendant understood these rights and knowingly, intelligently
                 and voluntarily waived these rights.

    CP at 834. Richards assigns error to only finding 14. Citing the finding that he told

    Detective Hollenbeck that he did not want to give up his rights, he argues that "[w ] hen an

    individual in any manner and at any time invokes his or her right to remain silent, police

    must cease questioning." Br. of Appellant at 26 (citing State v. Walker, 129 Wn. App.

    258,273-74, 118 PJd 935 (2005)).

           Richards recognizes that the invocation of the right to remain silent or the right to

    counsel '''must be clear and unequivocal (whether through silence or articulation) in

    order to be effectual,' and authorities do not have to ask clarifying questions in response

    to unclear and equivocal statements." Id. (quoting Walker, 129 Wn. App. at 276; citing

    Berghuis v. Thompkins, 560 U.S. 370, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010)). He

    argues that his statement that he "did not want to give up his rights" was unequivocal,

    relying on State v. Grieb, 52 Wn. App. 573, 761 P.2d 970 (1988).




                                                 20 

No. 29075-1-111
State v. Richards


       Grieb involved substantially similar statements made by the defendant when being

read his rights ("'I don't wanna waive my rights'" but "'I'll talk to ya'''). Id. at 574. But

the context in which the defendant made and repeated his objections in Grieb was

contextually different and the case was in a materially different posture on appeal. In

Grieb, a transcript of the conversation between the defendant and the questioning officers

revealed four times during the reading ofthe defendant's rights that he stated he did not

want to waive his rights or "'do anything that's gonna waiver of my ... waive my

rights.'" Id. (alteration in original). The defendant also said the he would talk to the

officers but did not say that he wanted to. The trial court found that the defendant did not

understand his Miranda rights and suppressed his statement. It was the State that was

appealing.

       Here, the Spokane detective involved in questioning Richards (Detective

Hollenbeck) testified at the suppression hearing that "[Richards] indicated that he wanted

to talk to us. It was clear that he was nervous about talking to us, but he-he wanted to

talk to us." RP at 281. He continued:

       A. 	 I told him that he had a right to refuse to answer any questions, and
            that it was my understanding, based on our conversation outside the
            jail, that he wanted to talk to Det. Murray.
       Q. 	 Did he respond?
       A. 	 He did. He said that-he adamantly denied being involved in the
            murder, and agreed that he was only a witness. He then agreed to
            continue the interview. He was then readvised of his constitutional
            rights.


                                             21 

No. 29075-1-111
State v. Richards


RP at 282. Detective Murray of the Okanogan County sheriffs office joined Detective

Hollenbeck and Richards in the interview after Richards had already made his single,

equivocal statement about not wanting to waive his rights. Detective Murray

readministered the Miranda warnings and taped his interview, in which Richards said

nothing about not wanting to waive his rights.

       The State bears the burden of showing by a preponderance of the evidence that a

waiver of Miranda rights was knowing, voluntary, and intelligent. State v. Athan, 160

Wn.2d 354, 380, 158 P.3d 27 (2007). A trial court's determination that a defendant's

statements were made voluntarily will not be disturbed on appeal if there is substantial

evidence in the record to support it. State v. Cushing, 68 Wn. App. 388, 393, 842 P.2d

1035 (1993). A signed waiver form alone is strong (although not sufficient) evidence to

prove waiver. State v. Bledsoe, 33 Wn. App. 720, 725, 658 P.2d 674 (1983) (citing State

v. Vannoy, 25 Wn. App. 464, 470,610 P.2d 380 (1980)).

       Richards's single equivocal statement that he did not want to waive his rights but

would talk to the detectives was only one piece of evidence before the court. Other

evidence included the two administrations of Miranda warnings; his signed waiver card;

and the testimony of two detectives who understood that Richards, having been read his

rights, wanted to provide his exculpatory statement. Substantial evidence supports the

trial court's denial of Richards's motion to suppress his third, formal statement.




                                             22 

No. 29075-1-111
State v. Richards


                        III. Admission of Statements of Coconspirator

       A pretrial motion in limine filed by the State put the trial court and the defendants

on notice that the State would seek to offer hearsay statements that it contended were

admissible because they were in furtherance of a conspiracy. An out-of-court assertion

offered for the truth of the matter asserted is not hearsay if offered against a party and

made by a coconspirator of that party "during the course and in furtherance of the

conspiracy." ER 80 1(d)(2)(v). Richards assigns error to the trial court's admission of

such statements recounted by three witnesses arguing that the State did not establish that

he was a party to a conspiracy to murder and that the statements admitted were not in

furtherance of a conspiracy.

       We first consider Richards's argument that the State did not demonstrate his

participation in a conspiracy. Before admitting hearsay evidence of statements by an

alleged coconspirator, the trial court must first find, "with substantial independent

evidence, a prima facie case of conspiracy" and at least slight evidence of the defendant's

participation. State v. Dictado, 102 Wn.2d 277,283-84,687 P.2d 172 (1984), abrogation

on other grounds recognized in State v. Short, 113 Wn.2d 35, 40, 775 P.2d 458 (1989).

Conspiracy is seldom susceptible of direct and positive evidence, id., and the State may

prove an illegal agreement giving rise to a conspiracy by circumstantial evidence,

including by overt acts alone. State v. Gallagher, 15 Wn. App. 267, 277, 549 P.2d 499

(1976). No formal agreement need be shown. State v. Barnes, 85 Wn. App. 638, 664,

                                             23 

No. 29075-1-111
State v. Richards


932 P.2d 669 (1997). The evidence of the conspiracy must be independent of the

statements themselves. Guloy, 104 Wn.2d at 420. The determination of whether a prima

facie case exists is for the trial court in the exercise of its discretion. State v. Culver, 36

Wn. App. 524,528,675 P.2d 622 (1984).

       The State need not charge the crime of conspiracy to admit out-of-court statements

of a defendant's coconspirators and need not meet technical requirements for proving the

crime of conspiracy. State v. Halley, 77 Wn. App. 149, 153-54,890 P.2d 511 (1995). To

admit a statement under ER 801(d)(2)(v), the State "need establish no more than the basic

dictionary definition of a conspiracy, 'an agreement ... made by two or more persons

confederating to do an unlawful act', Webster's Third New International Dictionary 485

(1969), regardless of the crime charged." Id. at 154 (alteration in original).

       Here, the trial court heard argument from the lawyers about the availability of the

exception before admitting the challenged hearsay. It ruled, "I think we've got prima

facie on a co-conspirator," but without explaining the basis for its finding. RP at 953.

We can nonetheless affirm admission of such statements without an independent trial

court determination if the record provides "substantial evidence" of the conspiracy. See

Guloy, 104 Wn.2d at 420.

       Here, there was substantial evidence of Richards's participation in a plan to "tax a

snitch" through assault and intimidation, at a minimum. There was testimony from

Richards'S friend that before the road trip, Richards learned that the plan was to

                                               24 

No. 29075-1-111
State v. Richards


intimidate a pregnant woman to the point of abortion; it was allegedly for that reason that

Richards, without withdrawing from the plan, stayed in Spokane and let his "tax man"

take the road trip. Phillips testified to how Richards pressed him, after the murder, to talk

about what had happened and acted disappointed at the amount of methamphetamine

provided in payment. And while Phillips claims not to have provided Richards with

details of what had happened, Richards evidently knew, since he later told detectives that

Phillips stabbed Kitterman. There was sufficient evidence of a conspiracy in which

Richards had some participation to satisfy that part ofthe foundation for admission.

       Turning to Richards's argument that the statements admitted were not in

furtherance of a conspiracy, we begin by recognizing that courts interpret the "in

furtherance" requirement broadly. State v. Baruso, 72 Wn. App. 603,615,865 P.2d 512

(1993). A statement meets the requirement if it is meant to induce further participation in

the conspiracy or to inform a coconspirator about the status of the conspiracy. State v.

King, 113 Wn. App. 243, 280, 54 P.3d l218 (2002) (citing United State v. Herrero, 893

F .2d 1512, 1527 (7th Cir. 1990». On the other hand, casual, retrospective statements

about past events do not fall within the coconspirator exception because they do not

further the conspiracy. Id. at 281 (citing Baruso, 72 Wn. App. at 614-15).

       The State's brief does not include argument as to how Hirst's statements admitted

as hearsay were in furtherance of the conspiracy. The damaging content of the

challenged testimony was Hirst's contemporaneous admission to third parties not

                                             25 

No. 29075-I-II1
State v. Richards


involved in the conspiracy of the criminal (or, at a minimum tortious) harm to Kitterman

that she and others had planned.' Her statements are not typical of the statements usually

examined for admission under ER 804(b)(3). It is difficult to see how they advanced the

object of the conspiracy.

       They are also unusually reckless, and the State relies on that to argue that even if

the statements were not admissible under the coconspirator exception, they were

admissible as statements against interest. Under ER 804(b)(3), a hearsay statement that,

at the time of its making, "so far tended to subject the declarant to civil or criminal

liability ... that a reasonable person in the declarant's position would not have made the

statement unless the person believed it to be true" is an exception to the hearsay rule if


        'Richards challenges the admission of testimony by one witness that Hirst told her
boyfriend prior to the murder that "it would all be taken care of by Monday [and] that
everything should be back to normal." RP at 992.
        He challenges the admission of testimony by a second witness, Hirst's co-worker,
who stated that Hirst made comments about the individual her husband was having an
affair with and would say "[a]nything from she was going to find a way to have her
thrown in jail, she was going to have her arrested, she was-going to-----she was going to
find some way to-----to get her out of their lives. Several occasions she made--direct
threats. . .. She stated on several occasions that she was going to have her taken care of,
she was going to have her eliminated, removed, disappear. . .. She said that she had
some--she knew some people in Spokane that were going to come take care of it for
her." RP at 1016-17.
        He challenges the admission of testimony by a third witness, Hirst's friend, who
testified that "[Lacey] hated Michelle because she was with Danny [Pavek]. . .. She told
me she had four people-she had hired to take care of Michelle and the unborn child ....
She said she was going to go out one night, when Danny's home, at her house, and she's
going to-----drug him-that night he was to meet Michelle, so he wouldn't go and meet
her, so he's going to-----she was going to drug him." RP at 1031-32.

                                             26 

No. 29075-1-111
State v. Richards


the declarant is unavailable as a witness. This exception was relied upon in the trial court

as an additional basis for admitting some of Hirst's statements to third parties. The State

established Hirst's unavailability by questioning her lawyer, who confirmed to the court

that Hirst (whose case had not proceeded to trial at the time Mathis's and Richards's case

was tried) would exercise her constitutional right to remain silent if she were called as a

witness. 8

       Richards does not address this alternative basis for admission by reply.

       We may affirm the trial court's ruling admitting evidence on any basis that the

record supports. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998). We agree·

with the State that the three statements by Hirst offered through third parties were all

statements against interest and admissible on that basis.

                                   IV. ER 404(b) Evidence

       The State's pretrial motion in limine also disclosed that it sought to introduce

evidence of drug transactions by Richards under ER 404(b), arguing that "drug

transactions were interwoven and pervasive throughout the lead up and commission of

the crime." CP at 769. For his part, Richards moved for an order in limine excluding any

evidence of prior bad acts. In ruling on the motions, the trial court expressed its view that


       8 The State points out that Richards's right to confrontation is not implicated by
Hirst's statements, which were made before the crime; to lay witnesses, not law
enforcement; and are not remotely "testimonial" within the meaning of Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

                                             27
No. 2907S-1-III
State v. Richards


some drug evidence would prove admissible on the res gestae basis argued by the State

but-critically for purposes of this argument on appeal-it reserved ruling on any

particular evidence. Instead, it instructed the defendants to object as appropriate:

               THE COURT: ... I don't want the state to beat the drug drum
       needlessly. I mean, it sounds like it is, at least in the state's theory of the
       case, it's part of their case in chief, but you can't use it to inflame the jury, I
       guess is what I'm saying.
               MR. SLOAN: We understand that.
               THE COURT: So I think what I should do on [motion in limine
       number] 6 is reserve, with everyone knowing that, okay, we just want the
       bare minimum of that put in, and if-and if defense counsel thinks they're
       going beyond the bare minimum, they're starting to beat that drug drum,
       then make your objection and we'll go from there.

RP at 437-38.

       Richards contends the trial court "abdicated its responsibility as the gatekeeper"

by failing to conduct an examination of the State's evidence of Richards's drug

involvement. Br. of Appellant at 37. But he fails to demonstrate where he made an

objection to specific evidence or argument on which the trial court would then rule. He

provides only two citations to the record in support of this assignment of error: one is to

the opening statement of the State and the other is to the opening statement of his

codefendant, Mathis. Richards did not object at either point in the proceedings to which

he draws our attention on appeal.

       Our Supreme Court "has 'steadfastly adhered to the rule that a litigant cannot

remain silent as to claimed error during trial and later, for the first time, urge objections


                                               28 

No. 29075-1-111
State v. Richards


thereto on appeaL'" Guloy, 104 Wn.2d at 421 (quoting Bellevue Sch. Dist. No. 405 v.

Lee, 70 Wn.2d 947,950,425 P.2d 902 (1967)). Richards waived any objection under

ER 404(b).9

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds, Richards raises four. He asserts that

the trial court erred by (1) depriving him of his right to a speedy trial by the continuances

granted to Mathis and (2) denying his request to change venue, (3) that no evidence was

presented that Richards was in possession of a deadly weapon, and (4) that the trial court

miscalculated his offender score by including juvenile convictions. The speedy trial issue

was adequately addressed by counsel and will not be reviewed again. RAP 10.1O(a). We

address the remaining three issues raised in turn.

       Change of Venue. Both Mathis and Richards moved for a change of venue based

on extensive pretrial publicity. The court denied the motion.

       When a defendant shows that pretrial publicity has created a probability of

unfairness or prejudice, a presumption arises that courts should reject claims by potential

jurors that they can be impartial. State v. Jackson, 150 Wn.2d 251,269, 76 P.3d 217


       9 In this section of his brief, Richards also makes a passing complaint about the
State's evidence that Richards was known to carry knives around, including an ice pick.
The argument is unsupported by references to any relevant part of the record, in violation
of our rules. RAP 1O.3(a)(6). We will not search the record to locate the portions
relevant to a litigant's argument. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
801,819,828 P.2d 549 (1992).

                                             29
No. 29075-1-111
State v. Richards


(2003). Courts must examine the totality of the circumstances to determine whether the

probability of unfairness or prejudice has been shown. Whether the community

remembers the crime is not the issue; rather, the relevant inquiry is whether the jurors

have such fixed opinions that they cannot judge impartially the guilt of the defendant.

See id. "It is sufficient if the juror can lay aside his impression or opinion and render a

verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 723, 81

S. Ct. 1639,6 L. Ed. 2d 751 (1961).

       A trial court's decision to deny a motion for change of venue is reviewed for abuse

of discretion. Jackson, 150 Wn.2d at 269. We independently review the record to

determine whether the probability of prejudice is so apparent that it was error to deny the

motion. State v. Thompson, 60 Wn. App. 662, 669, 806 P.2d 1251 (1991). We examine

nine nonexclusive factors to determine whether the trial court abused its discretion:

       "( 1) the inflammatory or noninflammatory nature of the publicity; (2) the
       degree to which the publicity was circulated throughout the community; (3)
       the length of time elapsed from the dissemination of the pUblicity to the
       date of trial; (4) the care exercised and the difficulty encountered in the
       selection of the jury; (5) the familiarity of prospective or trial jurors with
       the pUblicity and the resultant effect upon them; (6) the challenges
       exercised by the defendant in selecting the jury, both peremptory and for
       cause; (7) the connection of government officials with the release of
       publicity; (8) the severity of the charge; and (9) the size of the area from
       which the venire is drawn."




                                             30 

No. 29075-1-III
State v. Richards


ld. at 669 (quoting State v. Laureano, 101 Wn.2d 745, 756-57, 682 P.2d 889 (1984),

overruled on other grounds by State v. Brown, III Wn.2d 124, 761 P .2d 588 (1988),

adhered to on recons., 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989)).

       In this case, the trial court thoroughly considered the Jackson factors before

deciding, prior to voir dire, "at this time ... to deny the motion to change venue without

prejudice." RP at 401. The court went on to say that if, following voir dire, the court and

the parties were "unable to find fifteen or sixteen folks to hear this case, then you're

certainly able to renew that motion at that time." ld. A jury was selected and there is no

indication in the record that the motion was ever renewed. Richards has not shown an

abuse of discretion by the court.

       Sufficiency ofEvidence For Deadly Weapon Enhancement. Richards next argues

that the jury found him "armed with a deadly weapon" even though no evidence was

presented that he was in possession of a weapon when the crimes for which he was

convicted took place.

       RCW 9.94A.825 provides that "[i]n a criminal case wherein there has been a

special allegation and evidence establishing that the accused or an accomplice was armed

with a deadly weapon at the time of the commission of the crime, ... the jury shall, if it

find[s] the defendant guilty, also find a special verdict as to whether or not the defendant

or an accomplice was armed with a deadly weapon at the time of the commission of the

crime." (Emphasis added; third alteration in original.) Where the jury makes the finding,

                                             31 

No. 29075-1-III
State v. Richards


RCW 9.94A.533(4) provides that additional time "shall be added to the standard sentence

range."

       Richards's argument may be based in part on the form of the special verdict used

in his case, which asked only if "the defendant David Eugene Richards [was] armed with

a deadly weapon at the time of the commission" of the several charged crimes. CP at

632. But the court had instructed the jury that for purposes of the special verdict, "If one

person is armed with a deadly weapon, all accomplices are deemed to be so armed, even

if only one deadly weapon is involved." CP at 631. Given this instruction, substantial

evidence supported the special verdict finding that Richards was armed with a deadly

weapon.

       Offender Score. Richards's offender score used in arriving at his sentence was

four points, three of which were attributable to crimes committed when he was a juvenile.

Richards contends that his juvenile crimes should have been "washed out" or counted as

half points. He cites no legal authority for his position and may be relying on an

understanding of form:er law. A sentencing court's calculation of a defendant's offender

score is a question oflaw and is reviewed de novo. State v. McCraw, 127 Wn.2d 281,

289,898 P.2d 838 (1995).

       A defendant's criminal history lists both prior convictions and juvenile

adjudications. Former RCW 9.94A.030(14) (2008). "Criminal history" is a defined term

in the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW. Id. A decision

                                             32 

No. 2907S-1-III
State v. Richards


whether a prior conviction shall be included in an individual's offender score is

determined by the law in effect on the day the current offense was committed. State v.

Varga, lSI Wn.2d 179,189,86 PJd 139 (2004). Richards's current offenses were

committed in March 2009.

       Since its amendment in 2002, the SRA has provided that all prior juvenile

adjudications are included in a defendant's criminal history unless they have been

vacated. Former RCW 9.94A.030(l3) (2002). An offender has no vested right in the

definition of "criminal history" that was in effect at the time he acquires his history. In re

Pers. Restraint ofLaChapelle, IS3 Wn.2d 1, 12, 100 PJd 80S (2004). In particular, a

defendant convicted of a crime committed after the 2002 amendment of the definition of

"criminal history" has no vested right to have his pre-2002 juvenile convictions

disregarded. State v. McDougall, 132 Wn. App. 609, 614, 132 PJd 786 (2006).

       Turning to the trial court's calculation of Richards's offender score of four, we

look to RCW 9.94A.S2S(9), which provides the numerical scores for offenses. The

statute provides that if a defendant's present conviction is for a serious violent offense,

"count three points for prior adult and juvenile convictions for crimes in this category,

two points for each prior adult and juvenile violent conviction (not already counted), one

point for each prior adult nonviolent felony conviction, and 112 point for each prior

juvenile nonviolent felony conviction." RCW 9.94A.S2S(9).




                                             33
No. 29075-1-111
State v. Richards


       The trial court's calculation of an offender score of four for Richards was based on

an adult conviction for malicious mischief in the first degree, for one point; and on

juvenile convictions of child rape in the first degree, for two points, incest in the first

degree, for one-half point, and incest in the second degree, for one-half point. There was

no error.

       Affirmed.

       A majority of the panel has determined that this opinion will notbe printed in the

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

2.06.040.


                                                      ;J/~,
                                                Siddoway,~'

WE CONCUR:



Brown, 1.



Kulik, 1.




                                               34 

