IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 86608-7-I
Respondent/Cross-Appellant, DIVISION ONE
v. UNPUBLISHED OPINION DENNIS M. BAUER,
Appellant/Cross-Respondent.
SMITH, C.J. — Dennis Bauer and two acquaintances were arrested in
connection with three murders. Bauer was charged with three counts of
aggravated murder in the first degree, four counts of theft of a firearm, six counts
of unlawful possession of a firearm in the first degree, and six counts of
possession of a stolen firearm.
A jury convicted Bauer of three counts of aggravated murder in the first
degree and multiple firearm charges. Bauer was sentenced to life in prison
without the possibility of parole. Bauer appeals, arguing the trial court erred in
admitting particular evidence, in limiting his ability to cross-examine certain
witnesses, and in instructing the jury that they could find aggravated murder
based on felony murder. Bauer also asserts that law enforcement violated his
constitutional rights by continuing interrogation after he unequivocally invoked his
right to counsel. The State cross-appeals, asserting that the court erred in
denying the admission of evidence under forfeiture by wrongdoing and recorded
recollection. No. 86608-7-I/2
Because the trial court erred in admitting extensive inadmissible evidence,
in admitting inculpatory hearsay statements, in including Bauer’s custodial
statements in violation of his Miranda1 rights, and in prohibiting Bauer from cross-
examining key witnesses about their credibility, and these errors combined
denied Bauer a fair trial, we reverse and remand for a new trial.
FACTS
Background
Darrell Iverson (Darrell), his son Jordan Iverson (Jordan), and Jordan’s
girlfriend Tiffany May all lived on Darrell’s property in Port Angeles. The Iversons
were known in the area for selling drugs and people came and went from the
property at all hours of the day and night.
Dennis Bauer lived in a nearby cabin, known as “the Ranch,” and allowed
people to use his property when they needed a place to stay. Those who stayed
at the property, including Bauer, often used drugs. Kallie LeTellier and Ryan
Ward both lived at the Ranch through 2018. Bauer, LeTellier, and Ward all
frequently visited the Iverson property to use methamphetamine.
In December 2018, law enforcement found the Iversons and May
deceased on their property. Both Darrell and May had been shot seven times;
Jordan had been shot five times. About a month later, law enforcement arrested
LeTellier, Ward, and Bauer when DNA evidence and text messages placed all
three at the Iverson house on the night of the shooting. Ward was carrying a gun
1 Miranda v. Arizona, 384 U.S. 426, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)
2 No. 86608-7-I/3
registered to Darrell when he was arrested. When law enforcement executed a
search warrant at the Ranch, they found firearms and additional items belonging
to the decedents.
Following her arrest, LeTellier immediately gave a statement conceding
that she, Ward, and Bauer were at the Iverson property the night of the
shootings. She initially stated that she saw Bauer shoot May, heard additional
shots, and realized Ward shot Darrell and Jordan. She denied any involvement
in the killings and maintained that same story the next day. She changed her
account, however, when law enforcement told her they had video proof of her
involvement though they in fact did not. LeTellier then stated that she shot and
killed May. She maintained sole responsibility for shooting May in two
subsequent interviews.
LeTellier also told law enforcement that two weeks prior to the shootings
she was in the Iversons’ kitchen when she heard footsteps behind her and was
hit over the head. She blacked out and awoke naked and tied to a bed. The
Iversons then raped her for over seven hours. May walked in and out of the
room during the rape.
LeTellier recounted returning to the Ranch and telling Ward and Bauer
what happened. She noted that both were angry and upset and that Ward
threatened to kill the Iversons in retaliation. Bauer later testified that he had no
knowledge of the rape prior to the killings.
Following Bauer’s arrest, he was also questioned by law enforcement.
After the officers read him his Miranda rights and offered a waiver of those rights
3 No. 86608-7-I/4
to sign, Bauer stated, “I’ve found that usually people that start talking end up in
kind of trouble, they don’t even know what they’re getting into so I’d much rather
speak to a lawyer I think.” The officers reiterated that the wavier was necessary
to continue the conversation. Bauer then signed the wavier and responded to
questioning without an attorney.
Pleas
The State charged LeTellier, Ward, and Bauer with three counts of
aggravated first-degree murder each. The State reduced LeTellier’s charges,
however, in exchange for her cooperation. LeTellier pleaded guilty to second-
degree murder in February 2020 and received a 33-year sentence. When she
entered her first plea, she took full responsibility for her participation and did not
place blame on Bauer.
Ward pleaded guilty as charged to three counts of aggravated murder. In
his guilty plea statement, Ward wrote that LeTellier’s statement was “mostly
accurate, in that the victims of this crime were murdered for her sexual
enslavement at their hands." The court sentenced Ward to life without the
possibility of parole.
Bauer entered a plea of not guilty and his case proceeded to trial in
October 2021. As Bauer proceeded to trial, LeTellier reached out to the
prosecutor, seeking to withdraw her guilty plea. LeTellier claimed, in contrast to
all of her earlier statements, that Bauer held a gun to her head and forced her to
shoot May. She conceded that this contradicted her earlier accounts and
acknowledged that she had many opportunities to share this version of the story
4 No. 86608-7-I/5
before entering her initial plea taking full responsibility for killing May. She
nonetheless maintained this new version.
The court denied the admission of LeTellier’s letter to the prosecutor as
evidence in Bauer’s trial. The court also prohibited Bauer from cross-examining
LeTellier on her effort to withdraw her plea.
Trial
At trial, the State argued around the motive Ward articulated of avenging
LeTellier, introducing a separate motive arising from a drug debt the State
claimed Bauer owed Darrell. In attempting to prove this alternative motive, the
State introduced extensive evidence about Bauer’s participation in the drug
trade. Bauer repeatedly objected.
Both Bauer and LeTellier testified at trial. Ward refused to testify, which
the State attributed to a threat from Bauer after a book with Bauer’s name had
been found in Ward’s cell, with letters underlined to spell out “Ryan, don’t say
anything.” The court denied the State’s request to admit Ward’s recorded
statement to law enforcement to serve as testimony. But the court did allow
Ward’s girlfriend, Jessica Topham, to testify to as to what Ward told her about
the night of the shootings as an excited utterance.
Topham testified that, the day after the shootings, Ward called and
arranged to stay with her. She stated that Ward appeared “scared, worried,
crying, [and] emotional.” Ward recounted that LeTellier had shot May and that
while Bauer had shot Darrell and Jordan, Bauer told him to “go finish Jordan off
[be]cause he wasn’t dead yet.” Topham maintained that Ward was visibly
5 No. 86608-7-I/6
worried the whole time he was at her home.
LeTellier testified in great detail, providing further specifics of the night of
the shootings. She reiterated that Bauer pointed his gun at her until she shot
May. She stated that Bauer then shot May four more times.
Bauer, in contrast, testified that while he was present when LeTellier and
Ward shot the Iversons and May, he did not plan or participate in the shooting.
When the State asked Bauer why, if he was not involved, he did not shoot Ward
or LeTellier after seeing them shoot the Iversons, Bauer responded, “the thought
never crossed my mind.” On redirect, Bauer continued on, noting that “I do not
shoot people . . . I don’t care if you hand me a gun or not, I’m going to put it
down.” When asked again why he did not pick up a gun and shoot Ward or
LeTellier, Bauer stated, “I’m not going to shoot anybody.”
In response, the State introduced rebuttal evidence that Bauer had
committed an unrelated shooting the month prior. Bauer’s ex-girlfriend,
Alexandria Earley, testified that Ward contacted her requesting that she connect
with a mutual friend to set up a meeting. She stated that she, Ward, and Bauer
drove to meet this friend at a prearranged location, where Bauer lay in wait and
then “shot at him.” The court prohibited Bauer from cross-examining Earley
about her relationship with Bauer and her own legal implications from this prior
shooting. The State then recalled LeTellier to support Earley’s testimony.
The State also introduced one of Bauer’s Facebook messages to rebut
“[Bauer’s] multiple assertions that he would never shoot anybody.” The message
to an unrelated friend read: “I can shoot everybody and just say fuck it or not.”
6 No. 86608-7-I/7
The State charged Bauer with three counts each of premeditated or felony
murder committed in the course of a robbery. This included special allegations of
aggravated murder under RCW 10.95.020. The State also charged firearm
enhancements for each count and six counts of unlawful firearm possession and
theft of stolen firearms. The court instructed the jury that it could find aggravated
murder based on premeditated murder in the first degree or felony murder.
The jury convicted Bauer on all counts. Bauer appeals. The State cross-
appeals.
ANALYSIS
Standard of Review
We review a trial court’s evidentiary rulings for an abuse of discretion.
State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022). A court abuses its
discretion if “ ‘no reasonable person would take the view adopted by the trial
court.’ ” Jennings, 199 Wn.2d at 59 (quoting State v. Atsbeha, 142 Wn.2d 904,
914, 16 P.3d 626 (2001). A misunderstanding of underlying law is necessarily an
abuse of discretion. State v. Meza, 26 Wn. App. 2d 604, 609-10, 529 P.3d 398
(2023).
Rebuttal Evidence
Bauer asserts that the trial court improperly admitted extensive evidence
of an unrelated shooting as rebuttal evidence. We agree.
We review a trial court’s determination that a party has opened the door to
otherwise inadmissible evidence for an abuse of discretion. State v. Warren, 134
Wn. App. 44, 65, 138 P.3d 1081 (2006).
7 No. 86608-7-I/8
The open door doctrine “ ‘permits a court to admit evidence on a topic that
would normally be excluded for reasons of policy or undue prejudice when raised
by the party who would ordinarily benefit from exclusion.’ ” Fite v. Mudd, 19 Wn.
App. 2d 917, 935, 498 P.3d 538 (2021) (quoting State v. Rushworth, 12 Wn. App.
2d, 473, 458 P.3d 1192 (2020)). So, when a defendant opens the door to an
otherwise prohibited topic, the State may introduce relevant evidence in
response. State v. Lang, 12 Wn. App. 2d 481, 487, 458 P.3d 791 (2020).
Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” ER 401. But relevant evidence
may be inadmissible if its probative value is substantially outweighed by the risk
of unfair prejudice. ER 403.
Bauer repeatedly testified that he would not shoot someone, regardless of
the circumstances. In doing so, he opened the door to allow the State to
introduce relevant evidence to the contrary. Because the trial centered on
whether Bauer shot three people, the trial court did not abuse its discretion in
determining that evidence of Bauer’s prior shooting was relevant evidence. It
was not unreasonable to allow the State to cure the false impression that Bauer
created with the jury. The issue arises, however, in weighing the probative value
of the extent of the evidence against its prejudicial effect.
Earley’s testimony extended far beyond the fact that Bauer had shot at
someone before. In fact, Earley’s testimony detailed Bauer’s role as the “muscle”
for a drug dealer and described how he organized a meeting with another drug
8 No. 86608-7-I/9
user who was behind on a debt, lay in wait, and shot at him. Instead of simply
evidencing Bauer’s willingness to shoot, the testimony created an image of Bauer
as a hardened criminal, fully entrenched in the drug trade. In a trial centered on
witness credibility, the prejudicial effect of the admission of the expansive
surrounding statements outweighed any probative value they might have
provided. Therefore, the trial court abused its discretion in admitting far more of
Earley’s testimony than was appropriate as rebuttal evidence.
Drug-Trade Evidence
Bauer next asserts that the trial court erred in admitting evidence as to
Bauer’s involvement in the drug trade as propensity evidence. The State
contends that the evidence was properly admitted as proof of motive, opportunity
and knowledge under ER 404(b) and to complete the story under the doctrine of
res gestae. Although the drug trade evidence is not propensity evidence, given
that it does not establish Bauer’s likelihood to commit the charged crime based
on past acts, because the evidence is more prejudicial than probative and neither
completes the story nor establishes motive, the trial court abused its discretion in
admitting the testimony.
Again, evidence is relevant if it has any tendency to make a consequential
fact more or less probable but inadmissible if its prejudicial effect outweighs any
probative value. ER 401. Similarly, evidence of the accused’s prior bad acts are
inadmissible to prove criminal propensity. ER. 404(b). Such evidence suggests
propensity if offered to show action in conformity with past crimes, wrongs, or
acts. ER 404(b).
9 No. 86608-7-I/10
But otherwise inadmissible evidence may be admitted to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.” ER 404(b). It may also be admitted as res gestae evidence, to
“ ‘[complete] the story of the crime charged or [provide] immediate context for
events close in both time and place to that crime.’ ” State v. Ta’afulisia, 21 Wn.
App. 2d 914, 938, 508 P.3d 1059 (2022) (quoting State v. Sullivan, 18 Wn. App.
2d 225, 237, 491 P.3d 176 (2021)). Res gestae evidence must be “ ‘a link in the
chain’ of an unbroken sequence of events surrounding the charged offense.”
State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997) (quoting State v.
Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981)). Res gestae evidence is not
subject to the requirements of ER 404(b). Ta’afulisia, 21 Wn. App. 2d at 938.
Bauer asserts that the State introduced evidence of Bauer’s role in the
local “drug hierarchy” as propensity evidence to establish action in conformity
therewith. The State contends that Bauer’s role in that hierarchy was necessary
both to “complet[e] the story” of the shootings and to establish Bauer’s motive.
Over Bauer’s repeated objections, the court allowed the State to introduce
extensive evidence about Bauer’s general involvement in the drug trade, as well
as specific details centering on a failed effort to send money to another drug
dealer three weeks before the shootings. We conclude that while the evidence
was not propensity evidence, the extent of the evidence is again more prejudicial
than probative and it neither establishes motive, nor completes the story.
To begin, Bauer is incorrect in maintaining that the State introduced the
evidence as propensity evidence. The State introduced evidence of Bauer’s prior
10 No. 86608-7-I/11
bad acts as they related to the drug trade. As the introduced evidence did not
include prior murders, the evidence does not present bad acts to prove
conformity therewith. That said, the evidence is more prejudicial than it is
probative because it continues the image of Bauer as a hardened criminal deeply
involved in the drug trade while adding little relevant information. And because
the evidence neither establishes motive nor completes the story, the trial court
erred in admitting it.
The State attempts to establish that LeTellier’s documentation of Bauer’s
drug use and Kyle Weed’s testimony surrounding Bauer’s attempt, and failure, to
pay another drug dealer establish Bauer’s motive for killing Darrell, Jordan, and
May. But the State does little to actually connect this failed MoneyGram with
Bauer’s relationship to Darrell. In fact, LeTellier testified that she, Ward, and
Bauer continued to use drugs with the Iversons up until the night of the shooting.
And although law enforcement found firearms and other property belonging to
the decedents in Bauer’s home following the shooting, no evidence in the record
establishes a drug-related conflict between the men. The State’s knowledge of
other evidence, including Ward’s specific statement naming LeTellier’s rape as
motive, undercuts the story of a drug debt. The State’s tentative theory, without
any further connection beyond the fact that both Bauer and Darrell were involved
in buying and selling drugs, is not enough to admit otherwise inadmissible
evidence. The trial court abused its discretion in admitting the drug-trade
testimony under ER 404(b).
As to the idea of “complet[ing] the story,” similarly little evidence connects
11 No. 86608-7-I/12
Bauer’s unsuccessful money transfer to an entirely separate drug dealer to the
deaths of Darrell, Jordan, and May. Taking place three weeks prior to the
shootings, which is notably a longer time frame than the time between LeTellier’s
rape and the shootings, Bauer’s attempt to send money does not constitute a link
in a chain of an unbroken sequence of events. Rather, the testimony creates a
negative image of Bauer, potentially unrelated to the charged offense. Any
probative value it might hold in relation to the shootings pales in comparison to its
prejudicial effect. The trial court erred in admitting the drug-trade testimony
under the res gestae doctrine.
Hearsay
Bauer asserts that the trial court’s admission of inadmissible hearsay
statements deprived him of a fair trial. We conclude that the trial court did not
abuse its discretion in admitting Ward’s first statement as an excited utterance
but did err in admitting his second statement without hearsay exceptions for each
level of hearsay in his statement.
Hearsay is an out-of-court statement offered to prove the truth of the
matter asserted. ER 801(c). Hearsay evidence is inadmissible except as
provided by the rules of evidence, other court rules, or by statute. ER 802. And
a number of exceptions exist. ER 803, ER 804. When a statement includes
multiple levels of hearsay, each piece must fall under an exception to be
admissible. ER 805.
1. Excited Utterance
Bauer asserts that the trial court erred in admitting Ward’s statements to
12 No. 86608-7-I/13
Topham as an excited utterance because Ward was no longer under the
influence of a startling event when he spoke to Topham. We conclude that,
given the evidence provided, it was not unreasonable for the court to determine
that Ward was still under the stress of the shooting when he spoke to Topham
and therefore admit his statements as an excited utterance.
An excited utterance, or “a statement relating to a startling event or
condition made while the declarant was under the stress of excitement caused by
the event or condition” does not qualify as inadmissible hearsay. ER 803(2).
Courts reason that statements made under the stress of the event cannot be the
result of “fabrication, intervening actions, or the exercise of choice or judgment.”
State v. Carte, 27 Wn. App. 2d 861, 883, 534 P.3d 378 (2023), review denied, 2
Wn.3d 1017, 542 P.3d 569 (2024). A party intending to admit a statement as an
excited utterance must show that “(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.” Carte, 27 Wn. App. 2d at 883. A statement is more likely to qualify as
an excited utterance if the declarant is agitated or emotional, but such agitation
or anxiety is not sufficient on its own. Carte, 27 Wn. App. 2d at 884.
Here, the trial court admitted Ward’s statements to his girlfriend, detailing
the events of the shooting, hours after it occurred. We conclude that the State
clearly established the first and third factors required to introduce an excited
utterance. The shooting itself certainly constitutes a startling event or condition.
And Ward’s statements that Bauer shot Darrell and Jordan and then requested
13 No. 86608-7-I/14
that Ward “finish Jordan off,” relate clearly to that startling event. The remaining
question is whether, five hours after the shootings, Ward was still under the
stress or excitement of the startling event or condition when he spoke with
Topham.
Topham testified that when Ward stepped into her car the morning after
the shooting he was crying and visibly worried. She believed his emotions to be
genuine and when she asked what was wrong, he recounted the events of the
night before. Bauer objected to Topham’s testimony, relying primarily on the time
that had elapsed between the shooting and when Ward reconnected with
Topham. Bauer suggested that there must have been intervening events in the
four to six-hour period between the actual deaths and leaving with Topham. But
Bauer did not provide any evidence of such intervening factors. Given the
enormity of the startling event, the evidence of Ward’s agitated or emotional
state, the likelihood that leaving with Topham was the first time Ward had been
away from LeTellier and Bauer since the shooting, and the lack of evidence of
intervening events, it was not unreasonable for the court to allow the testimony.
The trial court did not abuse its discretion in admitting Ward’s statement to
Topham as an excited utterance.
2. Multi-Level Hearsay
Bauer next asserts that the trial court erred in admitting Ward’s statement
to Topham under the coconspirator exception to hearsay because, while Bauer’s
statements to Ward were arguably made between coconspirators, when Ward
told Topham, the statement was no longer in furtherance of a conspiracy. We
14 No. 86608-7-I/15
conclude that the trial court did abuse its discretion in admitting the testimony
because Topham’s account contained multiple levels of hearsay and the State
failed to establish an exception for each level.
A statement is not hearsay if the statement is made by a coconspirator of
the party during the course of and in furtherance of the conspiracy. ER
801(d)(2)(v). To be a coconspirator statement, the statement must “be made by
a coconspirator, not to a coconspirator.” State v. Sanchez-Guillen, 135 Wn. App.
636, 643, 145 P.3d 406 (2006) (emphasis omitted).
A statement is similarly not hearsay if the statement addresses “the
declarant’s then existing state of mind, emotion, sensation, or physical condition
(such as intent, plan, motive . . .), but not including a statement of memory or
belief to prove the fact remember or believed unless it relates to the execution,
revocation, identification, or terms of declarant’s will.” ER 803(a)(3). The use of
“then” in the term “then-existing” refers to the time the statement was made, not
the earlier time the statement describes. Sanchez-Guillen, 135 Wn. App. at 646.
“Statements discussing the conduct of another person that may have created the
declarant’s state of mind are inadmissible under ER 803(a)(3).” State v. Sublett,
156 Wn. App. 160, 199, 231 P.3d 231 (2010).
In addition to testifying as to Ward’s account of the night of the shootings,
Topham testified that Ward told her Bauer asked him to return to the Iverson
property to collect shells they had left behind. Bauer objected to the testimony,
asserting hearsay. The court overruled the objection, determining that Bauer’s
statement to Ward fell within the bounds of coconspirator statements. But there
15 No. 86608-7-I/16
are two levels of hearsay involved in Topham’s testimony: Bauer’s statements to
Ward and Ward’s statements to Topham.
Although Bauer’s statements to Ward do constitute coconspirator
statements,2 with both men involved in the shooting and the subsequent attempt
at a cover-up, no evidence exists to suggest that Ward recounting Bauer’s
statements to Topham furthered the conspiracy between Bauer and Ward.
Nothing in the record suggests that Ward relayed the information to Topham with
the intent of eliciting her help retrieving the shells or involving her in the overall
crime. Rather, as with Ward’s initial statements placing blame on Bauer, it
seems that Ward was continuing to tell a story that reduced his own culpability.
Ward’s statements to Topham do not fall under the coconspirator hearsay
exception.
The State then contends that the statements are not hearsay because
they expressed Ward’s then-existing statement of mind. Ward’s statements to
Topham, the State maintains, were simply expressing his plan to go get the
shells left behind. But Topham did not testify solely to Ward’s intent to do so.
Instead, she testified that Ward told her that Bauer told him he had to return to
the property to retrieve the shells. Ward did not express any ownership of this
“plan,” but rather indicated that he had to follow Bauer’s instructions. Bauer’s
conduct therefore created Ward’s statement of mind. Accordingly, Topham’s
testimony was not excluded as hearsay under ER 803(a)(3).
2 Bauer’s statements to Ward are also admissible as statements by a party opponent. ER 801(d)(2).
16 No. 86608-7-I/17
Because no exception covers both levels of hearsay testimony, we
conclude that the trial court abused its discretion in admitting Ward’s statements
to Topham as coconspirator statements.
Sixth Amendment Right to Challenge Accusers
Bauer contends that the court deprived him of his constitutional right to
challenge his accusers in limiting his ability to cross-examine LeTellier and
Earley about their potential biases. We conclude that the trial court did violate
Bauer’s Sixth Amendment right because the excluded evidence was at least
minimally relevant, was not so prejudicial as to disrupt the fairness of the
proceedings, and the State’s reasons for exclusion did not outweigh Bauer’s
interests in cross-examination.
The Sixth Amendment to the United States Constitution and Washington
Constitution article I, section 22 grant criminal defendants the right to present
testimony in their own defense. U.S. CONST. amend. VI; W ASH. CONST. art. 1,
§ 22. The right to present a complete defense includes the right to confront and
cross-examine adverse witnesses to expose bias. State v. Orn, 197 Wn.2d 343,
352, 482 P.3d 913 (2021). We review an alleged violation of this Sixth
Amendment right de novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576
(2010).
“The trial court must provide the accused with ‘a fair opportunity’ to defend
against the government’s accusations.” Carte, 27 Wn. App. 2d at 877 (internal
quotation marks omitted) (quoting Jones, 168 Wn.2d at 720). The court may
satisfy this right by allowing meaningful cross-examination. Carte, 27 Wn. App.
17 No. 86608-7-I/18
2d at 877. This right is not absolute, however, and the accused does not have a
right to present evidence that is “ ‘incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.’ ” Carte, 27 Wn. App. 2d at 877
(internal quotation marks omitted) (quoting State v. Lizarraga, 191 Wn. App. 530,
533, 364 P.3d 810 (2015)). Also, the accused has no right to introduce irrelevant
evidence. State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
Evidence is relevant if it has any tendency to make the existence of any
fact or consequence to the determination of the action more or less probable
than it would have been without the evidence. ER 401. “Proof of bias is almost
always relevant because the jury, as finder of fact and weigher of credibility, has
historically been entitled to assess all evidence which might bear on the accuracy
and truth of a witness’ testimony.” U.S. v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465,
83 L.ed.2d 450 (1984). The accused must be able to explore witness bias that
“stems from a witness’s motive to cooperate with the State based on the
possibility of leniency or the desire to avoid prosecution.” Orn, 197 Wn.2d
at 352.
We apply a three-part test to determine whether the trial court violated the
accused’s right to confront a witness by limiting the scope of cross-examination,
asking “(1) whether the excluded evidence was at least minimally relevant, (2)
whether the evidence was ‘so prejudicial as to disrupt the fairness of the
factfinding process’ at trial, and if so, (3) whether the State’s interest in excluding
the prejudicial evidence outweighs the defendant’s need to present it.” Orn, 197
Wn.2d at 353 (quoting State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)).
18 No. 86608-7-I/19
Here, the court prohibited Bauer from cross-examining LeTellier about her
efforts to withdraw her guilty plea, as well as from cross-examining Earley about
her own legal implications in relation to the testimony she provided about Bauer’s
prior shooting.
1. LeTellier
The State introduced LeTellier as a witness to provide a description of the
night of the shooting and Bauer’s role in its planning and execution. She did so
in great detail, from noting that Bauer and Ward left their cell phones at home
before driving to the Iverson property to describing watching Bauer shoot May.
But LeTellier’s account of the night changed a number of times over the course
of the months leading up to trial. LeTellier’s initial statement denied any
involvement in the shooting, placing all of the blame on Bauer and Ward. Her
initial plea statement, however, took full responsibility for killing May. And it was
not until Bauer proceeded to trial that LeTellier sought to withdraw that plea
agreement, asserting, for the first time, that she only shot May because Bauer
held a gun to her head. Despite acknowledging the changes to LeTellier’s
account, the court prohibited Bauer from cross-examining her about her attempts
to withdraw her plea. The trial court erred in doing so.
LeTellier’s credibility, as the only other witness at the scene who testified,
is certainly at least minimally relevant to the overall question of Bauer’s guilt.
LeTellier’s conflicting accounts of the night of the shooting mean that at least
some of the versions were untrue. And the fact that LeTellier hoped to withdraw
her plea and seek a rape trauma defense helps explain why the most recent
19 No. 86608-7-I/20
version of the story would minimize her own involvement and directly implicate
Bauer.
Next, no evidence in the record suggests that questions about LeTellier’s
attempt to withdraw her plea would be so prejudicial as to disrupt the fairness of
the factfinding process. The State contends that allowing Bauer to ask about
LeTellier’s attempt to revoke her plea paints the State in a bad light, suggesting
some sort of “wink” deal with LeTellier based on her performance at trial. This
would invite speculation, the State asserts, asking the jury to weigh LeTellier’s
credibility based on facts not in evidence. But the risk of painting the State in a
bad light is not enough to establish that relevant testimony would be so
prejudicial as to completely undermine fairness. And Bauer’s need to present
evidence of LeTellier’s potential motivation to fabricate a new story outweighs the
State’s interest in protecting its reputation.
We conclude that the trial court erred in prohibiting Bauer from cross-
examining LeTellier about her attempt to withdraw her plea deal.
2. Earley
The State introduced Earley as a witness to rebut Bauer’s character
evidence. She did so by detailing Bauer’s prior misconduct unrelated to the
charges at hand, depicting Bauer as a criminal. The court, however, prohibited
Bauer from questioning Earley about the legal implications of her own
involvement in that prior misconduct. This was error.
Evidence about Earley’s motivation for testifying is relevant because it
tends to show her interest in incriminating Bauer and minimizing her own
20 No. 86608-7-I/21
culpability. If Earley were to face charges for the same conduct she attributed to
Bauer, it is logical that she would emphasize his role in an attempt to lessen her
own.
And questions around Earley’s own criminal behavior are not so
prejudicial as to disrupt the fairness of trial. As with LeTellier, the State suggests
that the evidence is too prejudicial because it indicates that the State was hiding
an immunity deal. The State also pointed out that Bauer called his own witness
to rebut Earley’s testimony and therefore did not need to undermine her through
cross-examination. But, again, the risk of potentially suggesting that the State is
slightly underhanded is not enough to establish that relevant credibility testimony
is too prejudicial to allow for a fair trial. Earley suggested to the jury that Bauer
was the type of seasoned criminal who organized shootings based on drug
debts. It would not have been unreasonably prejudicial to grant Bauer the ability
to challenge that image by questioning the person suggesting it. Again, the
State’s interest in protecting its reputation is not enough to outweigh Bauer’s
need to undermine the credibility of key witnesses.
The trial court violated Bauer’s Sixth Amendment right to challenge his
accusers in limiting his ability to cross-examine LeTellier and Earley.
Fifth Amendment Right to Silence
Bauer asserts that law enforcement violated his Fifth Amendment3 right to
silence when officers continued to interrogate him after he unequivocally invoked
his right to an attorney. Bauer also asserts that such error is not harmless.
3 U.S. CONST. amend. V.
21 No. 86608-7-I/22
Because Bauer unequivocally invoked his right to counsel, law enforcement
violated his right to silence. And because the State did not prove beyond a
reasonable doubt that no probability exists that the outcome of the trial would
have been different had the questioning ended at Bauer’s request, we conclude
the error is not harmless.
We review questions of constitutional law de novo. State v. TVI, Inc., 1
Wn.3d 118, 128, 524 P.3d 622 (2023).
1. Unequivocal Request
Before any custodial interrogation, law enforcement must inform a suspect
that “ ‘he has the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for him prior to any
questioning.’ ” State v. Piatnitsky, 180 Wn.2d 407, 412, 325 P.3d 167 (2014)
(quoting Miranda, 384 U.S. at 479). Wavier of these rights must be knowing,
voluntary, and intelligent. Piatnitsky, 180 Wn.2d at 412. “Even once waived, a
suspect can invoke these rights at any point during the interview and the
interrogation must cease.” Piatnitsky, 180 Wn.2d at 412. But that request must
be unequivocal. Davis v. United States, 512 U.S. 452, 462, 114 S. Ct. 2350, 129
L. Ed. 2d 362 (1994). If the request is not unequivocal, officers may continue
questioning the suspect. Davis, 512 U.S. at 462.
A suspect’s request for counsel is unequivocal if they articulate their
desire with sufficient clarity such that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney.
22 No. 86608-7-I/23
State v. Gasteazoro-Paniagua, 173 Wn. App. 751, 756, 294 P.3d 857 (2013).
The Washington Supreme Court has held that “ ‘[m]aybe [I] should contact an
attorney’ ” or “I guess I’ll just have to talk to a lawyer about it” are equivocal
statements rather than an unequivocal request, but that “ ‘I gotta talk to my
lawyer’ ” and “ ‘I’m gonna need a lawyer because it wasn’t me’ ” are unequivocal
requests for an attorney. Gasteazoro-Paniagua, 173 Wn. App. at 756
(alterations in original) (internal quotation marks omitted) (quoting State v.
Radcliffe, 164 Wn.2d 900, 907-08, 194 P.3d 250 (2008); State v. Nyasta, 168
Wn. App. 30, 42, 275 P.3d 1162 (2012); State v. Pierce, 169 Wn. App. 533, 544-
45, 280 P.3d 1158 (2012)).
Here, when placed in custody and asked to waive his Miranda rights,
Bauer stated, “I’d rather not sign [the waiver]” and emphasized that he did not
know what was happening. In response, Officer Jeff Waterhouse, who read
Bauer his rights, reassured him that “constitutional rights . . . will never go away.”
Even if Bauer were to sign the waiver, Officer Waterhouse specified, he could
assert any of his rights at any point during the interview. Bauer then stated, “I’ve
found that usually people that start talking end up in kind of trouble, they don’t
even know what they’re getting into so I’d much rather speak to a lawyer I think.”
Officer Waterhouse acknowledged Bauer’s statement, saying “[o]kay, so you
don’t.” But when Bauer reiterated that he did not know what the arrest was
about, Officer Waterhouse continued to press on the waiver. Bauer eventually
signed and responded to questioning without his attorney.
Bauer expressed twice, within minutes of being read his Miranda rights,
23 No. 86608-7-I/24
that he did not understand his arrest and that he did not want to waive his rights.
This came in the form of three statements. Bauer first stated that he did not want
to sign the wavier. His second statement, noting that he found that people who
start talking usually end up in trouble, explained his desire not to sign the wavier.
He then added that he would rather speak to a lawyer. That third statement,
specifically stating that he would rather speak to a lawyer, followed directly on the
heels of Officer Waterhouse affirming that he could assert his rights at any time.
Including “I think” at the end of that sentence was, in this circumstance, simply a
description of his current train of thought; unlike “I guess,” which carries an
association of uncertainty. Any reasonable officer would have understood that
statement to be a request for an attorney.
In fact, Officer Waterhouse acknowledged Bauer’s desire not to talk.
Beyond the any reasonable officer standard, the record supports that Officer
Waterhouse actually understood Bauer’s request. Bauer unequivocally invoked
his right to counsel. And because Officer Waterhouse continued the
investigation after Bauer unequivocally invoked his right to counsel, law
enforcement violated Bauer’s constitutional right to silence.
2. Harmless Error
“A constitutional error is harmless if ‘it appears beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.’ ” State v.
A.M., 194 Wn.2d 33, 41, 448 P.3d 35 (2019) (internal quotation marks omitted)
(quoting State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002)). “ ‘An error is
not harmless beyond a reasonable doubt when there is a reasonable probability
24 No. 86608-7-I/25
that the outcome of the trial would have been different had the error not
occurred.’ ” A.M., 194 Wn.2d at 41 (quoting State v. Powell, 126 Wn.2d 244,
267, 893 P.2d 615 (1995)). “ ‘A reasonable probability exists when confidence in
the outcome of the trial is undermined.’ ” A.M., 194 Wn.2d at 41 (quoting State v.
Benn, 120 Wn.2d 631, 649, 845 P.2d 289 (1993)).
Bauer asserts that the State cannot prove the error was harmless beyond
a reasonable doubt because, without the admitted statements to law
enforcement, Bauer would not have felt the need to testify and the jury’s
assessment of credibility would have been far more limited. Bauer continues on
to suggest that the statements he made in violation of his Miranda rights were
critical to the State’s case. Because beyond reasonable doubt is a high bar, the
State does not establish that the outcome of the trial would not have been
materially different absent an error.
Bauer told law enforcement that he traded tools and a couple of guns with
Darrell in exchange for drugs, that he knew the people who lived at the Iverson
property, details of his relationship with Darrell, and that he was working the night
of the shooting. Bauer also provided details about LeTellier and Ward, noted
specifically that he did not think Ward would be connected to the murders, and
consistently denied that he himself was present the night of the shootings. This
latter testimony, in particular, contradicted Bauer’s later defense of mere
presence. At no point elsewhere in the trial did Bauer assert that he was not at
the Iverson property the night of the shooting. And the State highlighted this
inconsistency in closing statements, referencing his interview with law
25 No. 86608-7-I/26
enforcement directly. Given that both parties relied primarily on the jury believing
their witnesses over the other side’s, any challenges to credibility were critical to
the outcome of the case. Bauer’s inconsistencies before the jury stemmed from
inadmissible testimony. Because the State does not prove, beyond a reasonable
doubt, that the outcome of the trial would not have been different absent the
inadmissible statements, we conclude the error is not harmless.
Aggravated Murder
Bauer asserts that because the court informed the jury that they could find
aggravated murder based on premeditated murder or the felony murder charge,
his aggravated murder convictions are not authorized by law under RCW
10.95.020. Because the jury found Bauer guilty of premeditated murder and
established the aggravating circumstances, we disagree.
We review challenged jury instructions de novo, evaluating the particular
phrase in the context of the instructions as a whole. State v. Harris, 164 Wn.
App. 377, 383, 263 P.3d 1276 (2011).
A person is guilty of aggravated first degree murder if they commit first
degree murder as defined by RCW 9A.32.030(1)(a), and one or more
aggravating circumstances exist. RCW 10.95.020. RCW 9A.32.030(1)(a)
provides that a person is guilty of murder in the first degree when “with a
premeditated intent to cause the death of another person, he or she causes the
death of such person or of a third person.” A person is guilty of felony murder, in
contrast, when “he or she commits or attempts to commit any felony . . . and, in
the course of and in furtherance of such crime . . . he or she, or another
26 No. 86608-7-I/27
participant, causes the death of a person other than one of the participants.”
RCW 9A.32.050(1)(c). To find a person guilty of aggravated first degree murder,
the crime must be “premeditated murder in the first degree (not murder by
extreme indifference or felony murder) accompanied by the presence of one or
more of the statutory aggravating circumstances.” State v. Irizarry, 111 Wn.2d
591, 593-94, 763 P.2d 432 (1988).
Bauer asserts that because the court did not differentiate between
premediated murder and felony murder in giving the aggravated murder jury
instruction, there is no way to know that the jury relied on the correct charges in
finding Bauer guilty. He relies on Irizarry, noting that aggravated murder under
RCW 10.95.020 cannot be found based on felony murder and, if done, the
conviction should be vacated. 111 Wn.2d at 595. But Irizarry is factually
distinguishable because the defendant in that case was found guilty only of
felony murder.
Here, although the court did provide an inaccurate jury instruction, the jury
unanimously found Bauer guilty of both premeditated murder and felony murder,
plus the aggravating circumstances. Accordingly, the jury met each requirement
outlined by both Irizarry and RCW 10.95.020: the jury found the crime to be
premeditated murder in the first degree, accompanied by the presence of one or
more of the statutory aggravating circumstances. We conclude that Bauer’s
aggravated murder convictions were authorized by appropriate law and
standards.
27 No. 86608-7-I/28
Cumulative Error
Bauer lastly asserts that, even if a single error alone is not enough to
warrant reversal, the combined effects of all of the errors denied him a fair trial
under the cumulative error doctrine. The State does not address Bauer’s
cumulative error claim. We agree with Bauer.
The cumulative error doctrine applies when “ ‘a combination of trial errors
denies the accused of a fair trial, even where any one of the errors, taken
individually, would be harmless.’ ” State v. Azevedo, 31 Wn. App. 2d 70, 85, 547
P.3d 287 (2024) (quoting In re Pers. Restraint of Cross, 180 Wn.2d 664, 690,
327 P.3d 660 (2014) (abrogated on other grounds by State v. Gregory, 192
Wn.2d 1, 427 P.3d 621 (2018)). “The test to determine whether cumulative
errors require reversal of a defendant’s conviction is whether the totality of
circumstances substantially prejudiced the defendant and denied him a fair trial.”
Cross, 180 Wn.2d at 690.
Here, the trial court erred in admitting extensive inadmissible evidence, in
admitting inculpatory hearsay statements, in including Bauer’s custodial
statements in violation of his Miranda rights, and in prohibiting Bauer from cross-
examining key witnesses about their credibility. Given that the State’s case
rested on the jury believing LeTellier, Earley, and other state witnesses over
Bauer, the cumulative errors substantially prejudiced Bauer and denied him a fair
trial.
The State’s inadmissible drug-trade evidence depicted Bauer as a
hardened criminal, entrenched in the drug trade and capable of killing without
28 No. 86608-7-I/29
much thought. This image was then bolstered by Ward’s inadmissible hearsay
indicating that Bauer was in charge. Bauer’s statements to law enforcement,
which differed from his trial testimony, then created an image that he was a liar.
Combined, this testimony prejudiced the jury against Bauer and undercut his
defense of mere presence at the Iverson property. In prohibiting Bauer from
cross-examining the two key witnesses establishing this image, the court then
significantly limited Bauer’s ability to challenge that portrayal. When combined,
the trial court’s errors denied Bauer a fair trial.
Cross-Appeal
On cross-appeal, the State contends that the trial court erred in ruling that
Ward’s statements to law enforcement were inadmissible under ER 804(b)(6)
and ER 803(a)(5). Because the State is not an aggrieved party under RAP 3.1
and its appeal of evidentiary rulings does not fit in the RAP 2.2(b) criteria, we
decline to reach the cross-appeal.
“The standing of the State to appeal in a criminal case is limited by
RAP 2.2(b).” State v. Hawthorne, 48 Wn. App. 23, 28, 737 P.2d 717 (1987).
RAP 2.2(b) permits the State to appeal only in the following circumstances: (1)
final decision, except not guilty; (2) pretrial order suppressing evidence; (3) arrest
or vacation of judgment; (4) new trial; (5) disposition in juvenile offense
proceedings; and (6) particular sentences in criminal cases. Any appeal outside
of the RAP 2.2(b) criteria is not permitted. RAP 2.2(b).
Further, only an aggrieved party may seek review. RAP 3.1. Generally, a
party is not aggrieved by a favorable decision. Randy Reynolds & Associates,
29 No. 86608-7-I/30
Inc., v. Harmon, 193 Wn.2d 143, 151, 437 P.3d 677 (2019).
Here, the State received a unanimous guilty verdict on all charged
offenses. Accordingly, the State was not an aggrieved party below and therefore
could not seek review. In addition, the State’s appeal surrounding the admission
of evidence does not fit any of the RAP 2.2(b) criteria. The first two criteria are
the most applicable, but the State does not wish to appeal the final judgment, nor
did the trial court suppress the evidence in a pretrial order. In addition, because
we remand for a new trial, the admission of evidence will be a question for the
trial court. The evidence at the new trial may not be the exact evidence argued
initially.
We decline to reach the cross appeal and remand for a new trial.
WE CONCUR: