State Of Washington v. Sergey Vladimorovich Fedoruk

• Court: Court of Appeals of Washington
• Decided: December 9, 2014
• Docket: 43693-1
• Status: Published

Opinion

2014 DEC - 9 Ail 10 : 2y Uat BY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

DIVISION II

STATE OF WASHINGTON, No. 43693 -1 - II

Respondent, PART PUBLISHED OPINION

v.

SERGEY FEDORUK,

Appellant.

BJORGEN, A. C. J. A jury found Sergey Fedoruk guilty of second degree murder for the

death of Serhiy Ischenko, Fedoruk' s relative by marriage. Fedoruk appeals, arguing that ( 1) he

received ineffective assistance of counsel because his attorney failed to timely pursue a mental

health defense and did not object to alleged prosecutorial misconduct; ( 2) the prosecutor

committed flagrant and ill- intentioned misconduct in closing argument by undermining the

presumption of innocence, encouraging the jury to decide the case on grounds other than

reasoned evaluation of the evidence, expressing personal opinions as to Fedoruk' s guilt, and

presenting evidence not admitted at trial; ( 3) the trial court erroneously admitted incriminating

statements Fedoruk made to police; and ( 4) the trial court erroneously refused to instruct,the jury

on manslaughter as an included offense.

We hold that defense counsel' s failure to timely retain a mental health expert or

investigate the possibility of a mental health defense amounted to deficient performance, and No. 43693 -1 - II

Fedoruk has shown a reasonable probability that the deficient performance prejudiced him.

Accordingly, we reverse Fedoruk' s conviction and remand for further proceedings.

We also address the prosecutorial misconduct argument in the published portion of this

opinion and the admission of Fedoruk' s statements in the unpublished portion, because those

issues may recur on remand. Because a party' s entitlement to an included offense instruction

depends on the facts of the case, and the evidence presented may well differ on remand, we do

not decide whether the trial court erroneously declined to instruct the jury on manslaughter.

FACTS

A. Fedoruk' s History of Mental Illness

Fedoruk has a long history of serious mental illness. He suffered a head injury in a

motorcycle accident at the age of 18, was diagnosed with schizophrenia, and was twice admitted

to a psychiatric hospital. Doctors have prescribed numerous psychotropic and antipsychotic

medications, including Haldol, but Fedoruk has a history of poor compliance with the medication

regimens.

In 2002, Fedoruk' s family members reported to police that he had threatened them.

Responding officers took Fedoruk to the emergency room, where doctors prescribed

antipsychotic medication. During a 2007 competency evaluation, doctors at Western State

Hospital diagnosed Fedoruk with "[ b] ipolar 1 [ d] isorder, [ m] ost recent [ e] pisode [ m] anic, with

p] sychotic features." Clerk' s Papers ( CP) at 39. Fedoruk underwent another mental health

evaluation after the State charged him with robbery, assault, theft, and criminal trespass in 2008,

and a court ultimately found Fedoruk not guilty by reason of insanity.

2 No. 43693 -1 - II

In 2010, a court found Fedoruk gravely disabled and ordered him involuntarily

committed, but soon ordered him released on a less restrictive alternative. After Fedoruk

violated the terms of the court order, he was again involuntarily committed. Fedoruk had

stopped taking his prescribed psychiatric medications and threatened to blow up Ischenko, whom

Fedoruk had accused of raping a family member. Fedoruk was again released on a less

restrictive alternative in December 2010. At the time of Ischenko' s death, Fedoruk lived at a

house with numerous relatives, including Ischenko, and received outpatient care at a local clinic.

B. Fedoruk' s Arrest and Interrogation

Two community corrections officers ( CCO) and three sheriff' s deputies went to the house

where Fedoruk and Ischenko lived on August 1, 2011, responding to calls from Fedoruk' s family

members. The family members' concerns arose out of a series of incidents in which Fedoruk

engaged in increasingly strange behavior, including angry outbursts directed at Ischenko and

others. The family' s concerns increased over the course of the morning because no one could

find Ischenko, and they made additional calls to the authorities.

When the CCOs and deputies approached the house, Fedoruk met them at the front door.

Despite repeated admonitions to remain outside and keep his hands visible, Fedoruk kept putting

his hands in his pockets and turning to go back into the house. The CCOs handcuffed Fedoruk,

stating that it was only a safety precaution and Fedoruk was not under arrest.

After questioning Fedoruk on the porch, the CCOs and a deputy began searching the

surrounding grounds. As they walked the perimeter of the property, one of Fedoruk' s brothers-

in- law, Richard Dzhumaniyazov, ran toward them from the direction of a small ravine behind the

property, yelling, " Arrest him, arrest him. Shoot, shoot." Verbatim Report of Proceedings No. 43693 -1 - II

VRP) at 121 -22. Dzhumaniyazov led the officers into the ravine, where they found Ischenko' s

body.

Deputy Cory Robinson then placed Fedoruk in a patrol car and read him the Mirandal

advisements. When informed that anything he said could be used against him in court, Fedoruk

shouted, " Court, court, court!" VRP at 192. When told he had the right to talk to a lawyer,

Fedoruk asked, " Lawyer, why ?" VRP at 192. After Deputy Robinson confirmed that Fedoruk

understood his rights and asked if Fedoruk wished to speak, Fedoruk replied, " I don' t want to

talk to you." VRP at 193. Deputy Robinson then left Fedoruk alone in the car.

After Deputy Robinson returned, Fedoruk began speaking without prompting for about

three or four minutes. Deputy Robinson took notes and reported Fedoruk' s statement at trial as

follows:

My sister, Tatyana [ Varyvoda]. I ask -- I asked my sister -- ... What you want, a big dick or something? And he tell my sister, I want sex. I tell just this. I tell smoke dick, Tatyana. I just telling him it' s not -- ... tell just this. I tell smoke dick, Tatyana. I just telling him, it' s not big deal. Christian no talk to for this for sex every time. I tell him, look, is my sister, too. And -- ... [ m] y sister very, very

mad. She get bitchy and say, anybody call cops? I never touch him. I not touch

him, never. I go to property of Tatyana, get goats.

VRP at 907 -08.

After Deputy Robinson transported Fedoruk to the sheriff s department, Chief Civil

Deputy Marc Gilchrist and Detective Sergeant Joe Reece attempted to interview Fedoruk. They

did not readminister the Miranda advisements. Fedoruk, who remained cuffed, pointed at

Detective Reece and said, " I don' t want to talk to you." VRP at 243 -44. Detective Reece left the

I Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

4 No. 43693- 1- 11

room, but Deputy Gilchrist, who interpreted Fedoruk' s statement to mean that Fedoruk was

willing to speak to him, remained.

Deputy Gilchrist interviewed Fedoruk without an interpreter2 for an hour and a half.

After Fedoruk asked for an attorney, Deputy Gilchrist terminated the interview and released

Fedoruk to the custody of Officer Chris Napolitano, who detained Fedoruk for community

supervision violations.

After further investigation, the State charged Fedoruk with second degree murder under

two alternatives: intentional murder and felony murder predicated on assault.

C. Pretrial Proceedings

While awaiting trial, Fedoruk was initially uncooperative with jail staff, who frequently

used force to restrain him. After an incident in which Fedoruk " had pretty much bitten off one of

his fingers," the trial court, over Fedoruk' s objection, entered an order directing jail staff to

forcibly administer antipsychotic medications. VRP at 1; CP at 32 -34. Once medicated,

Fedoruk became " docile, respectful, pretty quiet [ and did not] cause any problems." VRP at 69.

The trial court also ordered Fedoruk to undergo a competency evaluation at Western

State Hospital. The psychologist who performed the evaluation recommended that Fedoruk

return to face prosecution, opining that

Fedoruk does have a major mental illness, but ... is not currently experiencing symptoms of a mental disease or defect that would interfere with his capacity to have a factual and rational understanding of the criminal proceedings he faces or .. . with his capacity to assist counsel in his defense.

CP at 45. Fedoruk proceeded to stand trial.

2 Fedoruk has limited English proficiency and had the assistance of a translator at all proceedings in the trial court. No. 43693 -1 - II

The court held a hearing to consider the admissibility of Fedoruk' s various statements

under CrR 3. 5, taking testimony from the law enforcement witnesses who had had contact with

Fedoruk. The court ruled all of Fedoruk' s statements admissible and entered written findings

and conclusions. The written findings include ( 1) that Fedoruk " was not in custody and not in a

situation akin to custodial arrest" until after officers discovered Ischenko' s body and Deputy

Robinson placed Fedoruk in the patrol car; ( 2) that, although Fedoruk initially " invoked his right

to remain silent," he initiated the subsequent conversation with Deputy Robinson and " thus

waived his right to remain silent "; and ( 3) that by saying he did not want to talk to Detective

Reece, Fedoruk " cho[ se] which officer to talk with" and thus " initiated the conversation" with

Deputy Gilchrist. CP at 8 -9.

The State moved to limit testimony concerning Fedoruk' s mental illness on the ground

that the defense had not disclosed any expert witness qualified to give an opinion on the subject.

During the hearing, Fedoruk' s counsel stated that "[ t]he Defense has no intention of putting

forward an affir m at i v e defense of diminished capacity or arguing that ... Fedoruk was incapable

of forming intent at the time." VRP at 333. Defense counsel instead argued as follows:

Our defense is ... he didn' t do it, but I need to respond to the allegations of the State. To the extent that their evidence calls into question his mental health at the time, I believe it' s appropriate for the Defense to be able to argue that those considerations and concerns need to be considered by the jury in determining whether or not the State' s proven, specifically, that he intended to commit the crime of murder, or whether some lesser mental state was present.

VRP at 334 -35. The State then summarized the evidence it intended to present concerning

Fedoruk' s behavior in the period leading up to Ischenko' s death as it reflected on Fedoruk' s

mental state. The trial court granted the State' s motion in part, prohibiting testimony about No. 43693 -1 - II

diminished capacity or mental disease or defect, and ruled that the jury would not be instructed

on diminished capacity.

Five days later, on the day before jury selection began, Fedoruk' s counsel moved for a

60 -day continuance to pursue an affirmative defense of not guilty by reason of insanity. Defense

counsel stated that, although he had contemplated a mental health defense earlier in the case,

obtained some records concerning Fedoruk' s mental health history, and spoken to Fedoruk' s

family about it, "[t] here was no evidence to support or suggest those defenses" and he had " no

basis legally to pursue" them until he interviewed Fedoruk after the CrR 3. 5 hearing. VRP at

397, 404. In the motion, counsel asserted that his request was timely made immediately

following his first opportunity to talk with Fedoruk about the commencement of the trial with an

interpreter after the CrR 3. 5 hearing.

The State acknowledged that " there' s a legitimate basis to raise the defense" and that,

based on " what the State knows of the Defendant' s mental health at the time, it' s possible it

would be relevant to the trial [ and] could change the outcome." VRP at 401. The State

nonetheless opposed the motion for continuance, arguing that Fedoruk' s counsel knew the basis

for the defense all along, that it " look[ ed] like a stall tactic," and that a continuance would cause

prejudice because the State had already scheduled witnesses to testify. VRP at 400, 402 -03. The

court denied the motion, finding that the defense had " failed to lay a factual foundation for the

basis to continue [ and] that diligence has not been shown." VRP at 406. No. 43693 -1 - II

D. Evidence About the Night of Tschenko' s Death

One of Fedoruk' s nieces, Rimma Fedoruk, testified that on the night of Ischenko' s death,

she awoke at around 3: 00 or 4: 00 a.m. to find Fedoruk in her bedroom. Fedoruk asked her if she

had been raped, said that he had " had a vision," and then made a punching motion in the air and

said that he was " going to take care of it because he has a lot of strength right now." VRP at

518 -20, 527.

The medical examiner testified that Ischenko died from blunt force trauma, and possibly

also strangulation. A crime laboratory analyst testified that the DNA (deoxyribonucleic acid)

profile obtained from bloodstains on Fedoruk' s clothing matched Ischenko' s. DNA from

numerous bloodstains at the end of the driveway also matched Ischenko' s profile, as did DNA in

blood obtained from under Fedoruk' s fingernails.

E. Closing Argument

The prosecutor began her closing argument by stating, " It' s been a long week. You' ve

heard from 32 witnesses from the State. Sergey Fedoruk is guilty of murder two." VRP at 1771-

772. After going through the elements of the crime as charged, the prosecutor asked the jury,

What are the agreements in this case ?" VRP at 1775. She then discussed the physical evidence

presented in this context, repeatedly referring to matters on which the defense presented no

evidence as " agreements." VRP at 1776 ( " Both sides can absolutely agree ... that" Ischenko

was beaten or strangled to death); VRP at 1777 ( "Agreements. Absolute agreements. "); VRP at

1778 ( same). The prosecutor argued that, based on these agreements, "[ i] dentity is the only

issue" remaining. VRP at 1779. No. 43693 -1 - II

The prosecutor then turned to the theme of her argument: " Intuition is a powerful thing."

VRP at 1784. The prosecutor repeated this intuition theme several times in the course of

discussing testimony indicating that several of Fedoruk' s family members immediately suspected

Fedoruk of involvement in Ischenko' s disappearance.

The State supplemented the argument with a PowerPoint presentation. On the first slide,

under the heading " State v. Fedoruk," the words " Guilty Murder 2" appeared in large red letters.

Ex. 287. The next slide showed a photo of Ischenko, alive and smiling, under the heading

Serhiy Ischenko." Ex. 287. The third shows Ischenko' s naked, battered body on the autopsy

table under the heading " Murder 2" in large red letters, which heading also appeared on each

subsequent slide. Ex. 287.

The slides tracked the prosecutor' s argument, showing various "[ a] greements," slides 14-

16, and the theme " Intuition is a POWERFUL thing" between a bullet point saying, " Family

immediately suspects Defendant," and one saying, " Richard [ Dzhumaniyazov] finds body,

immediately says arrest him." Ex. 287. One slide listing various " agreements" shows a photo of

Ischenko' s body lying in the ravine under the heading " Murder 2." The presentation also

includes sound effects and animation, such as footprints appearing across the bottom of exhibit

287, slide 27, and concentric rings of a target, corresponding to various pieces of evidence,

appearing on the screen and culminating with an arrow pointing from the name " Sergey

Fedoruk" to the bullseye. Ex. 287.

The prosecutor concluded the presentation by repeating the second and third slides,

described above, and showing another, larger image of Ischenko' s body in the ravine under the

heading " Murder 2." Ex. 287. On the final slide, under an enlarged " Murder 2" heading, the No. 43693 -1 - II

word " GUILTY" flashes, written with all capitals in a 96 -point red font. Ex. 287. As these

words and images appeared on the screen, the prosecutor delivered the following summation:

Serhiy Ishchenko. He' s a brother. He was an uncle. He was a father. He was a tidy man, a hard worker and considerate. He was beaten to death, stomped to death, strangled to death. His body was left in a ravine and he was left for dead by the Defendant. Murder two. The Defendant is guilty, guilty, guilty. Thank you.

VRP at 1810. Fedoruk did not object to any portion of the State' s closing argument, or to the

PowerPoint presentation.

In its closing, the defense sought to exploit the lack of direct testimony linking Fedoruk

to the killing. Fedoruk' s counsel also suggested that Ischenko' s estranged wife or

Dzhumaniyazov, the brother -in -law who first discovered Ischenko' s body, may have been

involved.

The State gave a brief rebuttal, concluding with "[ t]he Defendant is dressed in Serhiy

Ishchenko' s blood. There' s nothing more that you need. He' s guilty." VRP at 1815. The jury

returned a guilty verdict, finding by special interrogatory that Fedoruk committed intentional

murder, not felony murder predicated on assault. Fedoruk timely appeals.

ANALYSIS

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Fedoruk contends that his counsel' s failure to timely investigate a mental health defense

by consulting with a qualified expert deprived Fedoruk of the effective assistance of counsel

guaranteed by the Sixth Amendment of the United States Constitution. We agree.

10 No. 43693 -1 - II

A. Standard of Review and Controlling Law

We review claims of ineffective assistance of counsel de novo as they present mixed

questions of law and fact. State v. A.N.J., 168 Wn.2d 91, 109, 225 P. 3d 956 ( 2010). A defendant

who raises an ineffective assistance claim " bears the burden of showing that ( 1) his counsel' s

performance fell below an objective standard of reasonableness and, if so, ( 2) that counsel' s poor

work prejudiced him." A.N.J., 168 Wn.2d at 109. " The benchmark for judging any claim of

ineffectiveness must be whether counsel' s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result." Strickland

v. Washington, 466 U. S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Although "[ t] here

is a strong presumption that defense counsel' s conduct is not deficient," that presumption is

rebutted if "no conceivable legitimate tactic explain[ s] counsel' s performance." State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004).

B. Deficient Performance in Failing To Investigate Fedoruk' s Mental Health Defense

Because "[ e] ffective assistance of counsel includes assisting the defendant in making an

informed decision as to whether to plead guilty or to proceed to trial," an attorney' s failure to

adequately investigate the merits of the State' s case and possible defenses may constitute

deficient performance. A.N.J., 168 Wn.2d at 111 ( citing State v. S.M., 100 Wn. App. 401, 413,

996 P. 2d 1111 ( 2000)). While

t] he degree and extent of investigation required will vary depending upon the issues and facts of each case, ... at the very least, counsel must reasonably evaluate the evidence against the accused and the likelihood of a conviction if the case proceeds to trial.

A.N.J., 168 Wn.2d at 111.

11 No. 43693 -1 - II

We will not generally hold deficient a defense attorney' s " strategic choices made after

thorough investigation of law and facts relevant to plausible options." Strickland, 466 U. S. at

690 -91. Where an attorney makes strategic choices " after less than complete investigation,"

however, a reviewing court will consider them reasonable only " to the extent that reasonable

professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690 -91.

Thus, " counsel has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary." Strickland, 466 U. S. at 691. With respect to

the need for expert testimony, our Supreme Court has adopted the approach set forth by the

Ninth Circuit Court of Appeals:

Counsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult. Once that determination has been made, counsel must present those experts with information relevant to the conclusion of the expert."

In re Pers. Restraint of Brett, 142 Wn.2d 868, 881, 16 P. 3d 601 ( 2001) ( quoting Caro v.

Calderon, 165 F. 3d 1223, 1226 ( 9th Cir. 1999)).

The State correctly points out that the record on appeal does not make entirely clear what

investigation Fedoruk' s counsel may have conducted. Counsel' s statements at the hearing on the

motion to continue, however, establish that the defense had not retained a mental health expert or

had Fedoruk' s mental condition as of the date of the crime evaluated by a qualified mental health

professional. Initially, defense counsel described the basis for the continuance motion as

follows: " an issue has arisen that creates a requirement ... to pursue a defense theory not

previously pursued." VRP at 395 ( emphasis added). Counsel further stated that "[ t] here was no

12 No. 43693- 1- 11

evidence to support or suggest those defenses prior to" interviewing Fedoruk after the CrR 3. 5

hearing, and that " we have obtained other prior history that would go in aiding an evaluation at

this point." VRP at 398, 404. Under the circumstance presented here, we consider this record

sufficient to warrant our review.

The extensive history of mental illness outlined above, all of which was available to the

defense from the beginning of the case, indicates that the decision not to seek to retain an expert

to evaluate Fedoruk until the day before jury selection fell below an objective standard of

reasonableness. Even if Fedoruk told counsel that he was not involved in Ischenko' s death and

did not wish to pursue a mental health defense, counsel could not have assisted him in making an

informed decision about the consequences of going to trial on a theory of general denial without

first getting an expert opinion regarding Fedoruk' s mental health at the time of the killing. In

light of the State' s strong circumstantial evidence against Fedoruk, the failure to obtain an

independent expert evaluation appears even less reasonable.

The State relies on In re Personal Restraint ofDavis, 152 Wn.2d 647, 721 -32, 101 P. 3d 1

2004), in which our Supreme Court rejected a petitioner' s claim that counsel' s failure to present

a mental health defense during the guilt phase of a capital murder trial deprived him of effective

assistance. Davis is of little instruction here, however, because in that case defense counsel

retained five mental health experts prior to trial. 152 Wn.2d at 723.

Similarly, the State cites In re Personal Restraint ofElmore, 162 Wn.2d 236, 258 -59, 172

P. 3d 335 ( 2007), which held defense counsel' s decision not to present mitigating mental health

evidence at sentencing reasonable. Elmore, however, is also of little instruction because counsel

13 No. 43693 -1 - II

in that case had retained an expert prior to trial and fully investigated the defendant' s mental

health situation. Elmore, 162 Wn.2d at 245 -46, 258.

The State also relies on Brett. In that case, the court found a defense attorney' s

performance fell below the standard of reasonableness based on several deficiencies, including

failure to investigate a mental health defense:

W] hen counsel knew or had reason to know of a mental defect or illness affecting their client in a possible death penalty case, counsel could and should have: ( 1)

promptly sought the appointment of cocounsel; ( 2) presented a mitigation package to the prosecutor before a death penalty notice was filed; ( 3) promptly investigated relevant mental health issues; ( 4) sought a timely appointment of investigators; ( 5)

sought a timely appointment of qualified mental health experts; and ( 6) adequately prepared for the penalty phase by having relevant mental health issues fully assessed and by retaining, if necessary, qualified mental health experts to testify accordingly.

142 Wn.2d at 882. The court specified, however, that

w]hile the failure to perform one of these actions alone is insufficient to establish ineffective assistance of counsel, the failure to perform the combination of these actions establishes that defense counsel' s actions in Brett' s trial were not reasonable under the circumstances of the case.

142 Wn.2d at 882 -83 ( emphasis omitted). This suggests that in Brett' s context the failure to

investigate the mental health defense does not alone suffice to establish deficient performance.

Certain of the other deficiencies the Brett court identified, however, also appear to be

present here. Specifically, Fedoruk' s counsel also did not seek " timely appointment of qualified

mental health experts," nor " adequately prepare[ d] ... by retaining, if necessary, qualified

mental health experts to testify." 142 Wn.2d at 882. Other deficiencies identified by the Brett

court have no application here because this case was not bifurcated into guilt and penalty phases.

The Brett court summarized the basis for its holding as follows:

14 No. 43693 - 1 - II

Counsel did not conduct a reasonable investigation into Brett' s medical conditions and the possible mental effects of such severe conditions. Thus, Brett' s counsel was unable to make informed decisions about how to best represent him in both the guilt and penalty phases of the trial.

142 Wn.2d at 883. Viewed consistently with Brett, the failure to investigate a mental health

defense for Fedoruk fell below an objectively reasonable standard.

C. Prejudice

We now turn to the question of whether the failure to investigate prejudiced Fedoruk. To

merit reversal based on an ineffective assistance claim, a defendant has the burden to show a

reasonable probability that, but for the deficient performance, the result of the proceeding would

have been different. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987). Under this

reasonable probability" standard, the defendant " need not show that counsel' s deficient conduct

more likely than not altered the outcome in the case," but must demonstrate a probability of a

more favorable result " sufficient to undermine confidence in the outcome" actually obtained.

Strickland, 466 U.S. at 693 -94. The defendant must make this showing " based on the record

developed in the trial court." State v. McFarland, 127 Wn.2d 322, 337, 899 P. 2d 1251 ( 1995).

The State contends that Fedoruk does not meet these standards because he cites to

nothing in the record showing that any expert would be able to testify that he was legally insane

or lacked the capacity to form the necessary intent. The State rests this contention on State v.

Turner, 143 Wn.2d 715, 730, 23 P. 3d 499 ( 2001), in which our Supreme Court rejected a

defendant' s argument that his attorney' s failure to present expert testimony in support of a

diminished capacity defense denied him the effective assistance of counsel. The Turner court

15 No. 43693 -1 - II

reasoned that " Turner has failed to show that his counsel' s performance was deficient" because

i] t cannot be determined from the record on appeal that any expert would have testified that

Turner lacked the ability to form the specific intent required to commit the crimes with which he

was charged." 143 Wn.2d at 730.

The defendant in Turner was evaluated at Eastern State Hospital and found legally sane

at the time he committed his crimes. 143 Wn.2d at 721. Here, in contrast, Fedoruk was only

evaluated for competency to stand trial, not for legal sanity at the time of the killing. The

examining psychologist expressly opined that " Fedoruk does have a major mental illness, but he

is not currently experiencing symptoms of a mental disease or defect that would" render him

incompetent to stand trial. CP at 45 ( emphasis added). The facts underlying Turner are distant

enough from those presented here to rob it of any precedential force in this appeal.

On the other hand, evidence in the record, discussed above, shows that Fedoruk had

already been found not guilty by reason of insanity of a number of felony charges, based on

evaluations from two qualified professionals. His history of serious mental illness is well

documented, as set out in the Facts, above. His actions on the night of the killing were bizarre

under any yardstick, as shown by testimony described above. Furthermore, the State conceded

in the trial court that Fedoruk had " a legitimate basis to raise the defense" and that " it could

change the outcome of the trial." VRP at 401. This evidence shows a reasonable likelihood that

the outcome of the trial would have differed had Fedoruk been able to present an insanity or

diminished capacity defense. Although not conclusive, this evidence is sufficient to

demonstrate a probability of a more favorable result " sufficient to undermine confidence in the

outcome" actually obtained. Strickland, 466 U. S. at 694. With that, Fedoruk was prejudiced by

16 No. 43693 -1 - II

the failure to investigate a mental health defense. Accordingly, Fedoruk received ineffective

assistance of counsel, and we reverse his conviction. 3

II. PROSECUTORIAL MISCONDUCT

Fedoruk contends that the prosecutor committed flagrant and ill-intentioned misconduct

in closing argument, misconduct that merits review despite defense counsel' s failure to object.

Specifically, Fedoruk claims that the prosecutor ( 1) undermined the presumption of innocence by

telling the jury that Fedoruk' s failure to rebut portions of the State' s evidence amounted to

agreement" with the State' s case; ( 2) encouraged the jury to decide the case based on irrational

considerations rather than probative evidence and sound reason; ( 3) showed the jury evidence

not admitted at trial; and ( 4) invaded the province of the jury by expressing personal opinions on

questions of fact.

We agree that some of the prosecutor' s actions constituted misconduct. However,

because we reverse this case on other grounds, we do not address whether Fedoruk waived this

challenge or whether the prosecutor' s conduct prejudiced him. We address the prosecutorial

misconduct because it may arise on remand.

A. Controlling Law

To prevail on a prosecutorial misconduct claim, a defendant must show that the

prosecutor' s conduct was both improper and prejudicial " in the context of the record and all of

3 Fedoruk also argues that his counsel unreasonably failed to object to the State' s closing argument. Because we reverse based on ineffective assistance of counsel for failing to investigate a mental health defense, we need not address this argument. For the same reason, we need not address Fedoruk' s argument that the trial court erred in denying his motion for a continuance.

17 No. 43693 -1 - II

the circumstances of the trial." In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286

P. 3d 673 ( 2012). To establish prejudice, the defendant must " show a substantial likelihood that

the misconduct affected the jury verdict." Glasmann, 175 Wn.2d at 704. A defendant who

failed to object at trial must also establish " that the misconduct was so flagrant and ill intentioned

that an instruction would not have cured the prejudice." Glasmann, 175 Wn.2d at 704.

A prosecutor who "` throw[ s] the prestige of h[ er] public office ... and the expression of

h[ er] own belief of guilt into the scales against the accused ' deprives the defendant of the

constitutional right to a fair trial. Glasmann, 175 Wn.2d at 703 -04 ( quoting State v. Monday,

171 Wn.2d 667, 677, 257 P. 3d 551 ( 2011)) ( alteration in original) ( internal quotation marks

omitted). A prosecutor enjoys " wide latitude to argue reasonable inferences from the evidence,"

but " must ` seek convictions based only on probative evidence and sound reason. "' Glasmann,

175 Wn.2d at 704 ( quoting State v. Casteneda- Perez, 61 Wn. App. 354, 363, 810 P. 2d 74

1991)). A prosecutor, furthermore, ' should not use arguments calculated to inflame the

passions or prejudices of the jury.'" Glasmann, 175 Wn.2d at 704 ( quoting AM. BAR ASS' N,

STANDARDS FOR CRIMINAL JUSTICE std. 3- 5. 8( c) ( 2d ed. 1980)). Although a prosecutor may

point out a lack of evidentiary support for the defendant' s theory of the case" or " state that

certain testimony is not denied, without reference to who could have denied it," State v. Sells,

166 Wn. App. 918, 930, 271 P. 3d 952 ( 2012), review denied, 176 Wn.2d 1001 ( 2013), the .

general rule is that the State " cannot comment on the lack of defense evidence because the

defense has no duty to present evidence." State v. Cheatham, 150 Wn.2d 626, 652, 81 P. 3d 830

2003).

18 No. 43693 -1 - II

In Glasmann, the prosecutor used a PowerPoint presentation featuring images taken from

a security camera video, pictures of the victim' s injuries, and the defendant' s booking

photograph, with added commentary and text taken from trial testimony or witnesses' recorded

statements. 175 Wn.2d at 701. A series of slides repeatedly featured the booking photo

superimposed with the word " GUILTY" in red letters. Glasmann, 175 Wn.2d at 702. As the

slides appeared on the screen, the prosecutor delivered the following summation:

You' ve been provided with a number of lesser crimes if you believe the defendant is not guilty of the crimes for which the State has charged him, but the evidence in this case proves overwhelmingly that he is guilty as charged, and that' s what the State asks you to return in this case: Guilty of assault in the first degree; guilty of attempted robbery in the first degree; guilty of kidnapping in the first degree; and guilty of obstructing a police officer. Hold him accountable for what he did on October 23rd, 2004, by finding him guilty as charged. Thank you." Glasmann, 175 Wn.2d at 702. The defense did not object. Glasmann, 175 Wn.2d at 702.

In holding that the prosecutor committed flagrant and ill-intentioned misconduct, the

Glasmann court relied on the fact that "[ o] ur courts have repeatedly and unequivocally

denounced the type of conduct that occurred in this case." 175 Wn.2d at 704. First, the

Glasmann court noted the "' long- standing rule [that] consideration of any material by a jury not

properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that

the defendant may have been prejudiced. "' 175 Wn.2d at 705 ( quoting State v. Pete, 152 Wn.2d

546, 555 n. 4, 98 P. 3d 803 ( 2004)) ( internal quotation marks omitted). In rejecting the State' s

argument that it had merely combined properly admitted evidence with argument based on the

law and facts, the Glasmann court held that " the prosecutor' s modification of photographs by

adding captions was the equivalent of unadmitted evidence," and " a prosecutor must be held to

19 No. 43693 -1 - II

know that it is improper to present evidence that has been deliberately altered in order to

influence the jury' s deliberations." 175 Wn.2d at 706.

The Glasmann court next pointed out that " a prosecutor cannot use his or her position of

power and prestige to sway the jury" and quoted at length from the commentary to the American

Bar Association, Standards for Criminal Justice:

The prosecutor' s argument is likely to have significant persuasive force with jury. Accordingly, the scope of argument must be consistent with the the

evidence and marked by the fairness that should characterize all of the prosecutor' s conduct. Prosecutorial conduct in argument is a matter of special concern because of the possibility that the jury will give special weight to the prosecutor' s arguments, not only because of the prestige associated with the prosecutor' s office but also because of the fact -finding facilities presumably available to the office."

175 Wn.2d at 706 ( quoting commentary to std. 3 - 5. 8). The court went on to discuss the " many

cases warn[ ing] of the need for a prosecutor to avoid expressing a personal opinion of guilt," and

held that "[ b] y expressing his personal opinion of.Glasmann' s guilt through both his slide show

and his closing arguments, the prosecutor engaged in misconduct." 175 Wn.2d at 706 -07.

B. Expressions of Personal Opinion and Presentation of Unadmitted Evidence

Here, the trial court admitted no photos of Ischenko' s body with " Murder 2" appearing in

large red letters above them. Yet the State presented four such images to the jury during closing

argument. As in Glasmann, " the multiple altered photographs here may well have affected the

jurors' feelings about the need to strictly observe legal principles and the care [ they] must take in

determining [ the defendant' s] guilt." 175 Wn.2d at 706.

The State correctly points out that the presentation here differs in some respects from that

in Glasmann. With the exception of the red " Murder 2" heading that appeared over all but two

of the slides, the presentation here did not combine images from the evidence with testimony and

20 No. 43693 -1 - II

argument. In some ways, however, the presentation here is more egregious: although the

prosecutor here did not superimpose the word " guilty" over a picture of Fedoruk, she did flatly

state that "[ t] he Defendant is guilty, guilty, guilty" while flashing the word " GUILTY" in front

of the jury in large, red, capital letters on a screen bearing the heading " Murder 2." VRP at

1810; Ex. 287, slide 35. The prosecutor in Glasmann at least couched his assertions of guilt in

terms of what the evidence showed and the verdict the State asked jurors to return.

Here, the prosecutor did not make the challenged statements only in rebuttal as a fair

response to defense counsel' s arguments, but began and ended her prepared remarks with direct

assertions of Fedoruk' s guilt. The assertion of guilt that concluded her prepared remarks

followed not a summary of the evidence, but a discussion of Ischenko' s virtues, inviting the jury

to decide the case based on sympathy. The prosecutor here did not couch her assertions of guilt

in terms of the evidence in the case, and she reinforced those assertions with inflammatory

images similar to those held improper in Glasmann. The prosecutor conveyed to the jury her

personal opinion that Fedoruk was guilty. This argument was improper.

C. Appeal to Intuition

In addition, the prosecutor' s argument suggested that the jurors should take the fact that

Fedoruk' s family members suspected Fedoruk based on their " intuition" as evidence of his guilt,

going so far as to state that "[ t]he whole family doesn' t buy [ Fedoruk' s story] because their

intuition has told them the truth." VRP at 1801. This argument encouraged jurors to decide the

case based on considerations other than " probative evidence and sound reason." Casteneda-

Perez, 61 Wn. App. at 363. Further, the prosecutor here did not make these arguments in

rebuttal as a fair response to some related argument by the defense. Instead, this appeal to the

21 No. 43693 -1 - II

J

jury to infer guilt from others' intuitions served as the theme of her prepared remarks. Therefore,

this argument was improper.

D. Characterization of Fedoruk' s Failure to Rebut the State' s Evidence as " Agreement"

In closing, the prosecutor also repeatedly referred to matters on which the defense

presented no evidence as " agreements" between both sides. VRP at 1776. This characterization

plainly conveyed that Fedoruk had made an affirmative assertion about a matter by presenting no

evidence on it. In doing so, the prosecutor presented a false depiction of what Fedoruk said and

undermined the presumption of innocence by transmuting the defendant' s silence into evidence

against him. The State points out that the prosecutor " couched the term `agreement' in what was

the undisputed and uncontroverted evidence." Br. of Resp' t at 65. Although true, at least in the

first instance that the prosecutor used the word, this falls far short of establishing that the

remarks did not effectively comment on Fedoruk' s failure to present evidence. As Fedoruk

points out, the State argued based on the purported agreements that only one issue remained:

identity. Under Cheatham, 150 Wn.2d at 652, the prosecutor effectively commented on the lack

of defense evidence by arguing that because he did not present contrary evidence, Fedoruk

agreed with the State' s position. This, also, was improper.

In legal doctrines, some distinctions seem cut with a jeweller' s eye. Others seem more a

work of watercolor, with one shade blurred into another. Although the line between zealous

advocacy and improper argument may seem drawn in part in watercolor, the conduct at issue

here fell outside its blurred zones. The prosecutor' s actions described above constituted

misconduct.

22 No. 43693 -1 - II

A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.

III. THE TRIAL COURT' S REFUSAL To INSTRUCT THE JURY ON MANSLAUGHTER AS A LESSER INCLUDED OFFENSE

Fedoruk argues that the trial court violated his statutory and constitutional rights to have

the jury consider first degree manslaughter as a lesser included offense of second degree

intentional murder. Under State v. Workman, 90 Wn.2d 443, 447 -49, 584 P. 2d 382 ( 1978), the

resolution of that challenge depends in part on the evidence introduced. Because the evidence

introduced on remand may differ from that in the record before us, we decline to address this

issue.

IV. DENIAL OF THE DEFENSE MOTION To SUPPRESS FEDORUK' S STATEMENTS TO LAW ENFORCEMENT

Fedoruk argues that the trial court erred in admitting various statements he made to law

enforcement officials for one or more of three different reasons: ( 1) he did not make the

statements voluntarily; ( 2) he made the statements under custodial interrogation without having

been advised of his Miranda rights; and ( 3) the officials failed to scrupulously honor Fedoruk' s

initial invocation of his right to remain silent. Fedoruk assigns error to 20 of the findings and

conclusions the trial court entered following the CrR 3. 5 hearing. Because we reverse Fedoruk' s

conviction for the reasons set out above, it is not necessary to decide whether any error in

admitting Fedoruk' s statements also warrants reversal. However, because the issues may arise

on retrial, we address them in the interest ofjudicial economy.

23 No. 43693- 1- 11

A. Voluntariness

In reviewing a due process claim that a suspect made statements to police involuntarily,

we consider whether, under the totality of the circumstances, including the suspect' s powers of

resistance and the pressure brought to bear by the interrogators, the "` defendant' s will was

overborne. "' Dickerson v. United States, 530 U. S. 428, 433 -34, 120 S. Ct. 2326, 147 L. Ed. 2d

405 ( 2000) ( quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 -26, 93 S. Ct. 2041, 36 L. Ed.

2d 854 ( 1973)). The voluntariness inquiry is necessarily fact -specific. Gallegos v. Colorado,

370 U.S. 49, 52, 82 S. Ct. 1209, 8 L. Ed. 2d 325 ( 1962). " The length of the questioning, the use

of fear to break a suspect, [ and] the youth of the accused are illustrative of the circumstances on

which cases of this kind turn." Gallegos, 370 U. S. at 52 ( citations omitted). Also relevant is

the failure of police to advise the defendant of his rights to remain silent and to have counsel

present during custodial interrogation." Withrow v. Williams, 507 U. S. 680, 693 -94, 113 S. Ct.

1745, 123 L. Ed. 2d 407 ( 1993) ( citations omitted).

We reject Fedoruk' s due process argument because, other than the acts involved in

detaining him, Fedoruk does not allege that the authorities applied any pressure whatsoever to

get him to answer their questions. In essence, he argues that, given his mental illness, these acts

alone sufficed to overbear his will. However, he cites no authority for such a proposition. In

State v. Aten, 130 Wn.2d 640, 665, 927 P. 2d 210 ( 1996), our Supreme Court rejected a similar

claim:

although Respondent was diagnosed as suffering from grief and depression, there is no evidence that officers deliberately exploited her mental condition to obtain her statement or acted in a way that would overcome her will to resist giving a statement.

24 No. 43693 -1 - II

To illustrate the kind of showing necessary to establish that statements were involuntary,

in a recent federal case involving a 17- year -old suspect, Doody v. Ryan, 649 F. 3d 986 ( 9th Cir.

2011), the court held a confession involuntary where teams of police officers interrogated the

boy in shifts for over 12 hours. Fedoruk does not come close to making such a showing here.

The trial court did not err in concluding that Fedoruk made his statements to police voluntarily.

B. Miranda Violations

We consider unchallenged findings of fact entered by a trial court after a CrR3. 5 hearing,

as well as findings supported by substantial evidence in the record, verities on appeal. State v.

Lorenz, 152 Wn.2d 22, 36, 93 P. 3d 133 ( 2004). In evaluating a claim that a defendant' s

statements are inadmissible under Miranda and its progeny, however, we review de novo a trial

court' s rulings that a suspect was or was not in custody, invoked the right to remain silent,

initiated further conversation with police, or has knowingly and intelligently waived his Miranda

rights. See In re Pers. Restraint of Cross, 180 Wn.2d 664, 680 -81, 327 P. 3d 660 ( 2014)

invocation and custody present mixed questions of law and fact subject to de novo review);

State v. Daniels, 160 Wn.2d 256, 261, 156 P. 3d 905 ( 2007) ( Miranda issues are questions of

law); Terrovona v. Kincheloe, 852 F. 2d 424, 428 ( 9th Cir. 1988) ( voluntariness of waiver of the

right to remain silent " is essentially a legal judgment "). We are not bound by a trial court' s

mischaracterization of a legal conclusion as a finding of fact. State v. Ross, 141 Wn.2d 315, 309-

10, 4 P. 3d 130 ( 2000).

25 No. 43693 - 1 - II

1. Custodial Interrogation While on the Porch

Fedoruk argues that the trial court erred in admitting statements he made while on the

porch at his home prior to being advised of his Miranda rights because he made them under

custodial interrogation. We agree.

A person questioned by law enforcement officers after being " taken into custody or

otherwise deprived of his freedom of action in any significant way" must first "be warned that he

has a right to remain silent, that any statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney." Miranda, 384 U.S. at 444. Failure to

give these advisements renders any statements elicited inadmissible for most purposes in a

criminal trial. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293

1994). The requirement that police administer Miranda advisements does not attach, however,

until " there has been such a restriction on a person' s freedom as to render him in custody."

Oregon v. Mathiason, 429 U. S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 ( 1977) ( internal

quotation marks omitted).

Whether someone is in custody depends on all of the circumstances surrounding the

interrogation, but " the ultimate inquiry is simply whether there [ was] a ` formal arrest or restraint

on freedom of movement' of the degree associated with a formal arrest." California v. Beheler,

463 U. S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 ( 1983) ( quoting Mathiason, 429 U.S. at

495); accord Daniels, 160 Wn.2d at 266. In determining whether a suspect is in custody, courts

conduct an objective inquiry:

Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those

circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines

26 No. 43693 - 1 - II

and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry:.was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest."

J.D.B. v. North Carolina, - -- U. S. - - -, 131 S. Ct. 2394, 2402, 180 L. Ed. 2d 310 ( 2011) ( quoting

Thompson v. Keohane, 516 U. S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 ( 1995)) ( internal

quotation marks omitted) ( footnote omitted). Thus, a reviewing court considers the situation

from the point of view of a reasonable person in the suspect' s position, but does not consider the

subjective beliefs or intentions of either the suspect or the police.

Here, five armed and uniformed officers confronted Fedoruk at his house. They

repeatedly told him to keep his hands out of his pockets and prohibited him from going back

inside the house. Before asking Fedoruk about Ischenko' s car, the officers handcuffed him and

ordered him to sit on the porch. At this point, no reasonable person could have felt free to

terminate the questioning and leave: indeed, Fedoruk apparently tried to do so a number of times

but was ordered to stay put. See Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311

1969) ( suspect surrounded by four officers in his bedroom was in custody).

We hold that, once handcuffed and ordered to sit on the porch, Fedoruk was in custody

for purposes of Miranda. The trial court erred in concluding that Fedoruk was not in custody

until placed in the patrol car and in admitting statements Fedoruk made after being cuffed but

before Deputy Robinson administered the Miranda warnings.

2. Fedoruk' s Unprompted Statements to Robinson in the Patrol Car

Fedoruk argues that the trial court also erred in admitting the statements he made to

Deputy Robinson in the patrol car after being read the Miranda warnings because police

27 No. 43693 -1 - II

continued to interrogate him after he unequivocally invoked the right to remain silent. We agree

with the trial court that Fedoruk unequivocally invoked his right to remain silent when he told

Deputy Robinson, " I don' t want to talk to you." VRP at 193. Because Fedoruk' s statements to

Deputy Robinson were not the product of interrogation, however, the prophylactic rules laid

down in Miranda do not apply, and Fedoruk' s invocation of the right to remain silent thus has no

bearing on the statements' admissibility.

The trial court found that Fedoruk' s statements to Deputy Robinson were " spontaneous"

and concerned " the specific considerations of the case," concluding that Fedoruk " initiated this

conversation and thus waived his right to remain silent." CP at 9. Whether Fedoruk validly

waived his rights, however, is not the proper inquiry.

The United States Supreme Court has specified that

the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation ... the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent {, t] hat is ... any words or actions on the part of the police ( other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.

Rhode Island v. Innis, 446 U. S. 291, 300 -01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 ( 1980). Thus, in

State v. McIntyre, we held admissible McIntyre' s spontaneous in- custody statements, made prior

to receiving the Miranda warnings, on the grounds that the statement was not prompted by

questioning or other conduct equivalent to interrogation, and the actions of the police were

merely those normally attendant to arrest. 39 Wn. App. 1, 6, 691 P. 2d 587 ( 1984).

By merely returning to the patrol car to retrieve some papers, Deputy Robinson did not

do anything that he should have known was reasonably likely to elicit an incriminating response:

28 No. 43693 - 1 - II

Deputy Robinson' s conduct was merely that normally attendant to arrest and custody. Fedoruk' s

statement in the patrol car was thus not the product of interrogation, and the Miranda safeguards

do not apply. The trial court did not err in admitting Fedoruk' s statements to Deputy Robinson

in the patrol car.

3. Fedoruk' s Statements to Gilchrist

Even with the conclusion that Fedoruk' s unprompted statements in the patrol car were

admissible, we cannot accept the trial court' s conclusion that Fedoruk' s statement to Detective

Reece, " I don' t want to talk to you," VRP at 242 -43, qualified as a knowing and intelligent

waiver of the right to remain silent with respect to Deputy Gilchrist.

The admissibility of statements obtained by interrogation after a person in custody has

invoked his or her Miranda rights depends on whether the authorities "` scrupulously honored '

the suspect' s right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321,

46 L. Ed. 2d 313 ( 1975) ( quoting Miranda, 384 U. S. at 479). Police may subject a suspect who

invoked the right to counsel to further interrogation if (1) the suspect subsequently initiated

further communication with officers, and ( 2) the suspect knowingly and intelligently waived the

previously asserted right. Oregon v. Bradshaw, 462 U. S. 1039, 1044, 103 S. Ct. 2830, 77 L. Ed.

2d 405 ( 1983) ( holding that " even if a conversation [ following invocation of the right to counsel]

is initiated by the accused, where reinterrogation follows, the burden remains upon the

prosecution to show that subsequent events indicated a waiver "); Aten, 130 Wn.2d at 666. The

analysis is generally the same for the right to remain silent. See Berghuis v. Thompkins, 560 U.S.

370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 ( 2010).

29 No. 43693 -1 - II

Whether a suspect, after invoking his Miranda rights, " initiate[ d]" further discussion

depends on whether the suspect' s subsequent statement " evinced a willingness and a desire for a

generalized discussion about the investigation," or was " merely a necessary inquiry arising out of

the incidents of the custodial relationship." Bradshaw, 462 U.S. at 1045 -46. Whether a

purported waiver of the right to counsel or the right to remain silent is valid depends on the

totality of the circumstances, "` including the necessary fact that the accused, not the police,

reopened the dialogue with the authorities. ' Bradshaw, 462 U.S. at 1046 ( quoting Edwards v.

Arizona, 451 U. S. 477, 486 n. 9, 101 S. Ct. 1880, 68 L. Ed. 2d 378 ( 1981)).

A] suspect may, if he chooses, selectively waive his Fifth Amendment rights by

indicating that he will respond to some questions, but not to others." United States v. Lorenzo,

570 F. 2d 294, 297 -98 ( 9th Cir. 1978). A suspect' s waiver of Miranda rights, furthermore, " is not

irrevocable[:] Miranda and its progeny allow an interrogee effectively to withdraw his waiver

and fully assert his Fifth Amendment rights in the midst of the interrogation process." Lorenzo,

570 F.2d at 297.

Deputy Gilchrist admitted that, when he interpreted the sentence " I don' t want to talk to

you" as an expression of Fedoruk' s willingness to speak to him in Detective Reece' s absence, he

was under the erroneous understanding that Fedoruk had previously expressed to Deputy

Robinson a willingness to speak to police. VRP at 195 - 197. As discussed, the trial court

correctly determined that the same words, when previously spoken to Deputy Robinson,

constituted an unequivocal invocation of Fedoruk' s right to remain silent. The difference

between the two situations is only that two officers were present in the second instance, and

Fedoruk allegedly pointed at one, Detective Reece, as he uttered the words. The record makes

30 No. 43693 -1 - II

clear, however, that Detective Reece was the lead investigator in charge of the interrogation and

that Fedoruk' s hands were cuffed together. Thus, Fedoruk was only capable of pointing at one

officer at a time, and pointed to the officer in charge of the interrogation. We hold that, by

interrogating Fedoruk for an hour and a half without further clarification, Deputy Gilchrist failed

to " scrupulously honor[]" Fedoruk' s invocation of his right to remain silent. Miranda, .384 U :S.

at 479. The trial court erred in admitting the statements Fedoruk made to Deputy Gilchrist.

CONCLUSION

We hold that defense counsel' s failure to timely retain a mental health expert or

investigate the possibility of a mental health defense amounted to deficient performance and that

Fedoruk has shown a reasonable probability that the deficient performance prejudiced him.

Accordingly, we reverse Fedoruk' s conviction and remand for further proceedings consistent

with this opinion.

A,cX We concur:

MAxn

L