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UNPUBLISHED OPINION RAYMEL JABAR CURRY,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, NO. 67409-9-1/2
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.
-2- NO. 67409-9-1/3
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 -3- NO. 67409-9-1/4
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). -4- 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
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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, NO. 67409-9-1/2
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.
-2- NO. 67409-9-1/3
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 -3- NO. 67409-9-1/4
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). -4- 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. -5- 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. -6- NO. 67409-9-1/7
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). -7- 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.
A^/e O
WE CONCUR:
czrf,J.
-8-