IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 84551-9-I Respondent, DIVISION ONE v. PUBLISHED OPINION WENDELL ALLEN WILSON,
Appellant.
BIRK, J. — Wendell Wilson appeals his criminal conviction for shooting and
killing Lila Wilson, asserting that during a police interrogation he unequivocally
invoked his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966). We conclude he did. Wilson stated, “I’m going to
have to ask for legal representation”—words that courts have regularly found to
constitute an unequivocal invocation of Miranda rights. The State argues Wilson’s
use of those words was not unequivocal, because the context known to the
questioning officers was that Wilson had already waived Miranda once, he had
already admitted the shooting to police and others, and his reference to counsel
was building to a question about how long it would take to get a lawyer. We hold
the context did not confound Wilson’s clear request for a lawyer, his statements in
the interrogation were required to be suppressed, and the admission of his
statements at trial was not harmless beyond a reasonable doubt. We reverse
Wilson’s conviction and remand. No. 84551-9-I/2
I
A
Before he made the statements challenged on appeal, Wilson described
certain facts of the shooting in a series of calls to his ex-wife Gay Horton and 911,
and then to police officers responding to the scene.
Horton testified that on June 10, 2019, Wilson and Horton spoke over the
phone three times. Scene photos showed officers found a handwritten address
book open to a page showing Horton’s address and phone number. In the first
phone call, Wilson called Horton and angrily said, “ ‘I’m going to kill Lila.’ ” Lila
Wilson was Wilson’s adult daughter, and lived in an apartment with Wilson, her
husband, and her then 14 month old son, S. Because of Wilson’s history of
arguments with Lila Wilson, Horton did not take the threat seriously and
responded, “ ‘Okay, what did she do now?’ ” Wilson hung up. Horton called him
back after about three minutes, and Wilson said, “ ‘I killed Lila. I shot her.’ ” Horton
testified his demeanor and tone changed during this second call, because he was
breathing really hard and may have been in shock. Horton could not remember
where the break was between the second and third calls, but they were very close
in time and she recalls asking more details about what was going on. At Horton’s
request, Wilson indicated he would call 911.
Wilson informed the 911 operator that he needed social services for a baby
because he “ ‘just killed her—the baby’s mother’ ” using a gun. When the 911
operator asked why he shot the mother, Wilson stated, “ ‘She’s been given—we’ve
been having a lot of arguments and today it just finally got totally out of hand.’ ”
2 No. 84551-9-I/3
The argument centered on putting up a baby fence in the kitchen. The 911 audio
ends after approximately six minutes with the arrival of police directing Wilson to
put his “hands up” and put “the child down.”
Officer Edward Sagiao responded to Wilson’s 911 call and was one of the
first officers to come into contact with him. Officer Sagiao’s interactions with Wilson
were partially captured on his patrol car’s dashboard video camera. The first
minute of the dashcam video captures Officer Sagiao’s instructions, heard at the
end of the 911 call, to Wilson to put his hands up and the child down, followed by
officers taking Wilson into custody outside the apartment. A pretrial exhibit of an
extended version of this video included Officer Sagiao reading Wilson his Miranda
rights. Wilson waived his rights and agreed to speak with the officer. As to time,
Detective Christopher Edwards testified at the CrR 3.5 hearing that he heard about
the incident at approximately 5:00 p.m.
Responding authorities found the gun and, inside the apartment, a
deceased person later identified as Lila Wilson, who had been shot several times.
Wilson told Officer Sagiao the location of the gun and described an argument about
installing a baby gate in the kitchen for S. as the reason he shot her. Wilson stated
Lila Wilson did not want to hear about his opinion that S. would pull the gate down
and hurt himself, “then she started to escalate,” she said, “I’m leaving right now.
I’m [sic] just want to go,” and then she went into the bedroom and slammed the
door in Wilson’s face. After that, “I went and got my gun, and I shot her,” “several
times, several places.” When asked if the gun was locked, Wilson responded, “No
. . . it was up in the closet, way up on the shelf totally out of reach of any children.”
3 No. 84551-9-I/4
Officer Sagiao believed it was Lila Wilson’s room where Wilson retrieved the gun.
Officer Sagiao testified he believed he asked Wilson if he intended to kill Lila
Wilson and believed Wilson said he did. Officer Sagiao described Wilson’s
demeanor at the scene as “very calm” and “polite.” After approximately 20
minutes, Officer Sagiao arrested Wilson. The dashcam video continues for
approximately four more minutes. Another, 13 minute video shows Wilson being
transported to the police station.
The interrogation video shows Wilson entering an interview room with
Detective Edwards at 5:43 p.m. In the first minute of the video, Wilson asks for
confirmation that Detective Edwards is a detective. Within approximately another
minute, Detective Tracy Jared enters the room. The following exchange took place
starting at 5:45 p.m. during which Wilson asserts he unequivocally invoked his right
to counsel:
“DETECTIVE EDWARDS: All right. So no questions. A little bit of calmness here which is good. So like I told you, . . . I met you at the scene and this is Detective Jared. What we’re here to do is just try to get everybody’s input of what happened. Because, we know we weren’t there, that sort of thing. But before we do that, I know that you were spoken to at the scene by Officer Sagiao. And you were already given your Miranda rights; right? MR. WILSON: Correct. DETECTIVE EDWARDS: Okay. Do you remember understanding those rights? MR. WILSON: Yes. DETECTIVE EDWARDS: Okay. . . . [Y]ou’re gonna have to hear them again, because I’m going to read them to you again, just to make sure you understand them. I’m going to read them slow. If you have any questions, just let me know, okay, Wendell? And you’re okay if I call you—
4 No. 84551-9-I/5
MR. WILSON: Why (cross talk)[1]—that’s my name. Wendell is my name. DETECTIVE EDWARDS: Yeah. Do you want me to call you Mr. Wilson or Wendell? MR. WILSON: Whichever you’re comfortable with. DETECTIVE EDWARDS: Okay. Okay. Go ahead. MR. WILSON: Um . . . I know I can’t afford a lawyer. DETECTIVE EDWARDS: Okay. MR. WILSON: So I’m going to have to ask for legal representation, not out of resistance or—or—anything DETECTIVE EDWARDS: Mm-hmm. MR. WILSON: But, to get my—I just don’t know where—where you stop. Once you start answering questions— DETECTIVE EDWARDS: Understandable. MR. WILSON: —then a lawyer becomes real—rather—I mean— DETECTIVE EDWARDS: Well, yeah. MR. WILSON: It doesn’t, help, is what I’m trying to say. How long would it take me to get a lawyer for? DETECTIVE EDWARDS: Well, you won’t have one tonight— MR. WILSON: Now that’s for sure. DETECTIVE EDWARDS: Yeah, but will you have one. I mean, you’re guaranteed one, right? MR. WILSON: By the law. DETECTIVE EDWARDS: Oh, of course. The law will guarantee— guarantee you one. Whether you can afford one or not—and that’s part of the rights that I—I read to you. MR. WILSON: Right. DETECTIVE EDWARDS: So—I tell you what, let me go ahead and read them to refresh your memory. And then, . . . if you decide, then we’ll decide what to do after that. Okay? MR. WILSON: Yeah. DETECTIVE EDWARDS: Just so—at least I can say I’ve read them to you.
1 The quoted transcript is taken from the court reporter’s transcription of the
interview being played aloud at the CrR 3.5 hearing. As the trial court judge did, the panel has reviewed the video and audio recording of the interview. We acknowledge the recording captures nuances in tone and pace a written transcript cannot. At the point at which the reporter transcribed “(cross talk),” Wilson seems to begin to say something before interrupting that statement to say that his name is Wendell. It appears to be in response to Detective Edwards’ asking if he can call him Wendell. We observe that just before this, Detective Edwards asked two questions in immediate succession—whether Wilson had any questions, and whether the detective could call him Wendell. Throughout this exchange, Wilson is much more deliberate in his speaking than Detective Edwards’ relatively more rapid pace.
5 No. 84551-9-I/6
MR. WILSON: Right. DETECTIVE EDWARDS: Because I know, it was very hectic at the scene and I know it’s very loud and everything going on. All right. So Wendell, at this time you have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. So, do you understand each of these rights I’ve explained to you? MR. WILSON: Yes, I do. DETECTIVE EDWARDS: Okay. And then having these rights in mind, do you wish to talk to me now and give me your side of the story about what happened? MR. WILSON: (Pause.) Yes. DETECTIVE EDWARDS: You would like to talk to me now? Okay. Because—I mean, my job is to get both side— MR. WILSON: I’m dead meat anyways. DETECTIVE EDWARDS: I’m not going to say that. MR. WILSON: Well, I’m saying it, so. . .
....
DETECTIVE EDWARDS: Well, I mean that’s—all my job is, is to put everything together—to then show somebody. MR. WILSON: Right. DETECTIVE JARED: We just want to get your side. DETECTIVE EDWARDS: So you’re willing to talk to us now? MR. WILSON: Yeah. DETECTIVE EDWARDS: Okay. All right. So can you tell me. . . kind of start the day. How did your day start there? What happened?”
(Emphasis added) (some alterations in original). Detective Edwards continued to
interview Wilson for more than an hour.2
2 The interview by Detective Edwards that was played at trial ended at
approximately 7:10 p.m. Wilson remained in the interview room and the video continued until 10:35 p.m. The video shows that at 8:57 p.m. with a police officer in the room, Wilson asked, “At this point, can I still call for a, ask for a lawyer?” When the officer in the room deferred the question to other detectives, Wilson says again, “I’m just wondering how, when I might get one.”
6 No. 84551-9-I/7
B
In the interview, Wilson stated he took hydrocodone twice on the day of the
incident: once at 11:00 a.m. and again at 3:30 p.m. Wilson described the argument
that concerned installing a baby gate in the kitchen, which eventually escalated
with Lila Wilson threatening to move out. The argument took place throughout the
apartment, and the two were in the master bedroom before Wilson retrieved the
gun from the adjacent bedroom. Wilson stated the gun was in a closet up on a
shelf in a gun case. The gun was already loaded, but Wilson did have to charge
a round into the chamber. Lila Wilson never threatened him. Wilson stated he
came out of the adjacent bedroom at the same time Lila Wilson came out of the
master bedroom and the two were about a foot apart. When asked if he intended
to shoot Lila Wilson when they met, Wilson said, “I said yes earlier and . . . no,” but
did say he intended to hurt her, though he further stated he intended to “more scare
her.” Detective Edwards asked Wilson what was his intention for using the gun,
and Wilson stated, “It comes down to the dominance thing.” Wilson explained it
showed “who’s got the power” and agreed with Detective Edwards that Wilson’s
use of the gun showed Lila Wilson that he had the last word. When Wilson shot
Lila Wilson, she was well into the room because she started backing up, looked
scared, and put her hands up in a defensive position. Wilson said when he went
to get the gun, it was out of “rage,” and fear never crossed his mind.
The State charged Wilson with first degree murder. In a pretrial CrR 3.5
hearing, Wilson argued his statements “I know I can’t afford a lawyer” and “I’m
going to have to ask for legal representation” were an unequivocal invocation of
7 No. 84551-9-I/8
his right to counsel. The State agreed Wilson “makes a statement,” but argued
Wilson then “also . . . continues to bring it out, then asks questions.” The State
argued Wilson’s inquiry led the detective to have confusion so the detective “solves
it in the way recommended by the case law,” by repeating the Miranda warning.
The trial court found “based on the entire context of this, that the statement that
Mr. Wilson made concerning an attorney was an equivocal statement that required
. . . Detective Edwards to seek clarification.” The trial court relied on State v.
Pierce, 169 Wn. App. 533, 544, 280 P.3d 1158 (2012) and cases discussed in
Pierce that held statements such as “ ‘I’m going to need a lawyer’ ” were
unequivocal invocations when they were made on their own and were not
“followed by this question about the process.” The trial court ruled Wilson did not
unequivocally invoke his right to counsel and the interview statements were
admissible. As CrR 3.5(c) requires, the court entered written findings of fact and
conclusions of law.
The State played the interview at trial. Wilson presented expert testimony
discussed more fully below that he lacked the capacity to form premeditated intent
(which was necessary to convict him of first degree murder) or intent (which was
necessary to convict him of second degree murder). Wilson’s expert associated
his opinion with Wilson’s posttraumatic stress disorder from military service,
among other diagnoses. The State called an expert witness in rebuttal who
testified that Wilson’s “behavior” suggested he had the ability “to form the requisite
intent.” The court instructed the jury on first degree murder and on the lesser
included offenses of second degree murder, first degree manslaughter, and
8 No. 84551-9-I/9
second degree manslaughter. During deliberations, the jury asked for “more
information about premeditation,” what it meant to “have more than a moment in
point of time,” and “[h]ow short or long is it?” The jury asked for the DSM-53 criteria
for posttraumatic stress disorder and for the experts’ reports. The court referred
the jury to the trial evidence and the instructions. The jury convicted Wilson of first
degree murder.
C
Whether a defendant in a criminal case “unequivocally invoked” Miranda
rights “is a mixed question of law and fact.” In re Pers. Restraint of Cross, 180
Wn.2d 664, 680, 327 P.3d 660 (2014), abrogated on other grounds by State v.
Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). Under this standard of review, “we
defer to the trial court’s findings of fact but review its legal conclusions from those
findings de novo.” Id. at 681 (citing State v. Broadaway, 133 Wn.2d 118, 131, 942
P.2d 363 (1997)). Wilson challenges the trial court’s conclusion of law 2(f),
The Defendant’s discussion regarding getting a lawyer with Det[ective] Edwards at the police station before his interview was equivocal. The Defendant considered his options and waived his right to counsel. The Defendant’s waiver of Miranda for the portion of the Detective’s interview admitted and published to the jury was valid. Det[ective] Edwards sought proper clarification by reading Miranda and the Defendant’s waiver of Miranda was proper.
Whether an invocation of Miranda rights is unambiguous is “a bright-line inquiry”
and is an “objective” one. State v. Piatnitsky, 180 Wn.2d 407, 413, 325 P.3d 167
(2014). An invocation of Miranda rights “must be sufficiently clear ‘that a
3 AM. PSYCHIATRIC Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS (5th ed. 2013) (DSM-5).
9 No. 84551-9-I/10
reasonable police officer in the circumstances would understand the statement to
be [an invocation of Miranda rights].’ ” Piatnitsky, 180 Wn.2d at 413 (alteration in
original) (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129
L. Ed. 2d 362 (1994)). The question is whether, “[a]s a matter of law,” it was
reasonable for the detectives to conclude that the right to counsel was not invoked.
Id. The State agrees that this court therefore reviews de novo whether Wilson’s
invocation was sufficiently clear.
Before any custodial interrogation, “a suspect must be informed 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.’ ” Id. at 412 (quoting
Miranda, 384 U.S. at 479). “Once warnings have been given, the subsequent
procedure is clear. . . . If the individual states that he wants an attorney, the
interrogation must cease until an attorney is present.” Miranda, 384 U.S. at 473-
474. The prohibition on further questioning “is not itself required by the Fifth
Amendment’s prohibition on coerced confessions,” but is justified by its
“prophylactic purpose” in safeguarding that Fifth Amendment right. Connecticut v.
Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987). Washington
follows Davis’s standard for a suspect to clearly invoke Miranda rights. State v.
Radcliffe, 164 Wn.2d 900, 907, 194 P.3d 250 (2008).
“[I]f a suspect requests counsel at any time during the interview, he is not
subject to further questioning until a lawyer has been made available or the
suspect himself reinitiates conversation.” Davis, 512 U.S. at 458 (citing Edwards
v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)). But
10 No. 84551-9-I/11
the suspect must articulate his desire to have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would understand the
statement to be a request for counsel. Id. at 459. Invoking Miranda requires the
expression of an objective intent to do so. Piatnitsky, 180 Wn.2d at 412.4 As Davis
summarized these principles, after a knowing and voluntary waiver of Miranda
rights, law enforcement officers may continue questioning until and unless the
suspect “clearly requests” an attorney. 512 U.S. at 461. If the suspect’s statement
is “not an unambiguous or unequivocal” request for counsel, the officers have no
obligation to stop questioning him. Id. at 461-62.
Ambiguity in a request for counsel may exist in the circumstances leading
up to the request or in nuances inherent in the request itself. Smith v. Illinois, 469
U.S. 91, 98-100, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). But “ ‘[i]nterpretation is
only required where the defendant’s words, understood as ordinary people would
understand them, are ambiguous.’ ” State v. Nysta, 168 Wn. App. 30, 42, 275 P.3d
1162, 1169 (2012) (quoting Barrett, 479 U.S. at 529). “ ‘Using context to transform
an unambiguous invocation into open-ended ambiguity defies both common sense
and established Supreme Court law.’ ” Id. (internal quotation marks omitted)
(quoting Anderson v. Terhune, 516 F.3d 781, 787 (9th Cir. 2008)). Where nothing
about the request for counsel or the circumstances leading up to the request would
4 Piatnitsky involved the right to remain silent, rather than the right to counsel, but Washington courts “draw no distinctions between the invocations of different Miranda rights” because “ ‘there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel.’ ” 180 Wn.2d at 413 (quoting Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010)).
11 No. 84551-9-I/12
render it ambiguous, all questioning must cease. Id. Once a sufficiently clear
invocation is made, “an accused’s postrequest responses to further interrogation
may not be used to cast retrospective doubt on the clarity of the initial request
itself.”5 Smith, 469 U.S. at 100.
In arguing the “language and circumstances” of Wilson’s statement were
“not unequivocal,” the State emphasizes that Wilson’s statement was one of
inquiry. The State argues Wilson “ended his statement with a question about
timing,” suggesting he was “gathering information and assessing rather than
5 For the first time on appeal, Wilson raises the possibility of a violation of
CrR 3.1(c)(2), which requires that when a person in custody requests counsel, access to counsel by telephone or other means shall be provided “[a]t the earliest opportunity.” Wilson refers to Detective Edwards’s statement in answer to Wilson’s inquiry about how long it would take to get a lawyer: “Well, you won’t have one tonight.” Wilson does not strictly argue the State violated CrR 3.1, but rather argues he invoked his right before this statement sufficiently clearly that questioning should already have ceased. Thus relying on invocation rather than a waiver argument, Wilson also does not argue that an otherwise valid Miranda waiver was vitiated because Detective Edwards’s statement rendered the Miranda warnings unclear. Cf. State v. Mayer, 184 Wn.2d 548, 565, 362 P.3d 745 (2015) (“Of course, police officers may inform a suspect facing interrogation that appointed counsel is not immediately available. But if they tell a suspect that appointed counsel is not available until a future point in time, they must also clarify that this does not affect the suspect’s right to have counsel present during interrogation and his right to remain silent unless and until a lawyer can be present.” (emphasis added)); deputy added to Miranda warning that no lawyer would be appointed unless defendant was arrested, jailed, and taken to court). We appreciate the State’s admonition at oral argument that the record is silent concerning the availability of counsel that night, but we are skeptical that at 5:45 p.m. on a Monday night in June 2019 there would have been no means of connecting an indigent homicide suspect with a public defender in metropolitan King County. Wash. Ct. of Appeals oral argument, State v. Wilson, No. 84551-9-I (Apr. 23, 2024), at 18 min., 36 sec. to 19 min., 39 sec., https://tvw.org/video/division-1-court-of-appeals- 2024041198/?eventID=2024041198; Cf. Pierce, 169 Wn. App. at 539 (“The jail procedure when a prisoner requests to speak to an attorney after normal business hours is for jail staff at the booking desk to dial the home phone numbers of the public defenders for the prisoner.”).
12 No. 84551-9-I/13
making a plain assertion.” The State likens the case to State v. Whitaker, in which
the defendant asked during a custodial interrogation, “ ‘when he could talk to an
attorney.’ ” 133 Wn. App. 199, 216, 135 P.3d 923 (2006). The questioning agents
asked Whitaker whether he had an attorney or would need an appointed attorney,
and Whitaker replied that he was talking about “ ‘when in the process an attorney
would be appointed’ for him.” Id. We said Whitaker’s question “might have been
understood as an equivocal invocation of his right to counsel.” Id. at 217. We
confirmed this in Pierce, explaining “the Whitaker case presents an example of an
equivocal request.” 169 Wn. App. at 545. Whitaker stands for the proposition that
a mere inquiry about the process of obtaining counsel, such as Wilson’s question,
“How long would it take me to get a lawyer?,” is not an unequivocal request for
counsel.
In contrast, we agree with the trial court’s reading of Pierce, that a statement
such as “ ‘I’m gonna need a lawyer’ ” unaccompanied by a context suggesting it is
an inquiry about process clearly is an unequivocal request for counsel. 169 Wn.
App. at 545-46. In Pierce, the State did not appear to contend otherwise. We
focused on whether Pierce’s statement could be viewed as equivocal because it
was made as the apodosis of a conditional sentence. Id. at 546. Pierce’s full
statement was, “ ‘If you’re . . . trying to say I’m doing [sic] it I need a lawyer. I’m
gonna need a lawyer because it wasn’t me.’ ” Id. at 544 (emphasis added)
(alterations in original). The court speculated it might have looked at the situation
differently if the police had not yet accused Pierce of murder, but they had just
13 No. 84551-9-I/14
accused him when he said this so his statement was not truly conditional in context.
Id. at 545-46.
Wilson’s case falls between Whitaker and Pierce. As in Whitaker, Wilson
posed a question about process by asking how long it would take to get a lawyer.
But Wilson went clearly farther than the statements in Whitaker by stating he could
not afford a lawyer, was going to have to ask for legal representation, and
explaining that this was because if he answered questions without legal advice he
was at risk of putting himself beyond a lawyer’s help. Court have held statements
such as these are a clear invocation of Miranda, both in Pierce, and in the
authorities it discussed. In addition to Pierce’s statement “ ‘I’m gonna need a
lawyer,’ ” Nysta held it was an unequivocal invocation when a suspect said, “ ‘I
gotta talk to my lawyer,’ ” 168 Wn. App. at 42, and People v. Cook held it was an
unequivocal invocation when a suspect said, “ ‘Oh, I guess I am going to need an
attorney,’ ” 665 P.2d 640, 643 (Colo. App. 1983). Contrary to the State’s argument,
none of these cases suggested there was ambiguity in these statements because
the future tense “going to” might refer to some time later than the custodial
interrogation. We agree with Wilson’s observation at oral argument that he
grounded his reasoning for asking for counsel in the interrogation by the detective
that was immediately before him.6
6 Wash. Court of Appeals oral argument, State v. Wilson, No. 84551-9-I
(Apr. 23, 2024), at 11 min., 20 sec. to 11 min., 53 sec., https://tvw.org/video/division-1-court-of-appeals- 2024041198/?eventID=2024041198
14 No. 84551-9-I/15
Wilson’s statements are nevertheless a degree less clear than those in
Pierce, because Wilson made them in a context building to an inquiry about
process. The question is whether this makes a dispositive difference. We believe
it does not. Another point Pierce makes clear is that a suspect’s attitude of inquiry
is not dispositive of whether a request for counsel is unequivocal. Beyond the
ambiguous “ ‘maybe I should talk to a lawyer,’ ” statements of inquiry have been
held ambiguous, such as the inquiry in Whitaker and the inquiry “ ‘I can’t afford a
lawyer but is there any way I can get one?’ ” Pierce, 169 Wn. App. at 546 (citing
United States v. Lee, 413 F.3d 622, 625-26 (7th Cir. 2005)). But statements of
inquiry have also been held to be unequivocal invocations, such as “ ‘I have to get
me a good lawyer, man. Can I make a phone call?’; ‘Can I talk to a lawyer? At
this point, I think maybe you’re looking at me as a suspect, and I should talk to a
lawyer. Are you looking at me as a suspect?’ ”; and “ ‘Can I have a lawyer?’ ” Lee,
413 F.3d at 626 (quoting Lord v. Duckworth, 29 F.3d 1216, 1221 (7th Cir. 1994)).
Wilson’s statement is analogous to the unequivocal invocation “ ‘I have to get me
a good lawyer, man. Can I make a phone call?’ ” Wilson builds to a question,
including through the questioning body language noted by the trial court, but in
doing so makes an unambiguous statement of having to ask for counsel.
Wilson’s clear statement asking for counsel also was not confounded by his
hesitancy about process. The State argues Wilson’s statements showed
equivocation because it appeared he was “mulling the situation over.” The State
likens this to Piatnitsky, in which Piatnitsky “expressed some hesitation about the
questioning.” 180 Wn.2d at 414. But nothing indicates Wilson was in a state of
15 No. 84551-9-I/16
mulling about wanting a lawyer. In Piatnitsky, detectives interviewed Piatnitsky
about a shooting, and after about an hour of questioning during which he indicated
he was willing to give a taped confession, the detectives turned on a tape recorder.
180 Wn.2d at 409. After a detective asked if he understood he had the right to
remain silent, Piatnitsky said, “I’m not ready to do this, man” and “I don’t want to
talk right now, man.” Id. at 410. The detectives advised him of his Miranda rights
again and he signed a waiver form. Id. The Supreme Court held Piatnitsky
understood he had a right to silence that he was not exercising. Id. at 414. But
the whole record showed the his hesitation was only about making an audio-
recorded statement. Id. The detectives “reasonably concluded that Piatnitsky’s
statements were a preference for a written statement over a recorded one.” Id. at
414-15. Wilson was hesitant about whether he should speak to the detectives,
and was hesitant about a process with which he was unfamiliar. But Wilson’s
statement about having to ask for counsel expressed no hesitation about a desire
for proceeding with an attorney over proceeding without one.7
This brings Wilson’s case much more in line with Nysta. We held
questioning should have ceased during an interview with detectives when Nysta
7 The State does not argue that Wilson’s subsequent statement, after Detective Edwards continued questioning him and read the Miranda warnings again, that he was “ ‘dead meat anyway,’ ” bears on whether Wilson’s original statement about having to ask for counsel was unequivocal. The State argues only that if Wilson’s original statement was not unequivocal, then the court could look to Wilson’s later statement to confirm his view that his guilt was, as the State argues, “so obvious that he need not summon a lawyer.” This is a tacit admission that the only issue is whether Wilson’s original statement was unequivocal. If it was, then detectives were required to cease questioning and our inquiry is at an end. Davis, 512 U.S. at 461. If it was not, then none of Wilson’s statements amounted to an invocation of his Miranda rights.
16 No. 84551-9-I/17
said, “I gotta talk to my lawyer.” 168 Wn. App. at 39-40. A detective continued
questioning him, asking if he would be willing to take a polygraph and asking about
a burglary law enforcement was investigating. Id. The State argued Nysta’s
statement about talking to a lawyer was equivocal because he really meant he
wanted to consult with an attorney before deciding whether to take a polygraph,
but was still willing to continue the interview without an attorney. Id. at 39-42. We
rejected that reasoning, noting the State failed to cite authority that would support
giving such an “elaborate contextual interpretation to words as plain as ‘I gotta talk
to my lawyer.’ ” Id. at 42. Here too, that Wilson wanted a lawyer was clear. This
is not at odds with a simultaneous desire to cooperate indicated, the State argues,
by Wilson’s adding he was not asking for counsel “out of resistance.” Contrary to
the State’s argument, Wilson’s subsequent question was not directed to “when or
how he might need counsel down the road.” (Emphasis added.) Wilson directed
his inquiry to when or how he might get counsel down the road. This does not
contextualize away his clear request to have counsel.
The State also urges us to find context making Wilson’s request for counsel
ambiguous in the “circumstances leading up” to the interview, consisting chiefly of
the statements Wilson had already made. Citing no authority, the State argues
that Wilson’s statement requesting counsel was equivocal because he told his ex-
wife he had shot Lila Wilson, he said the same thing to the 911 operator, he said
the same thing again to police at the scene, he appeared “calm, rational, articulate,
and cordial” at the scene, and Detective Edwards “knew all this.” The State
appears to argue that a true request for counsel was by then unlikely, because
17 No. 84551-9-I/18
Wilson had said so much already. But this reasoning runs counter to Nysta for the
same reasons discussed above, and counter to Davis itself. The point of the
objective standard for invoking Miranda rights is to give law enforcement a bright
line rule that can be applied without requiring questioning to cease merely if “a
suspect makes a statement that might be a request for an attorney.” Davis, 512
U.S. at 461. It is not enough to surmise from background circumstances that a
suspect probably would want counsel, and by the same token surmise from
circumstances that a suspect probably would not want counsel cannot defeat a
clear statement that “I’m going to have to ask for legal representation.”8
8 Because we conclude Wilson’s statement was an unequivocal invocation
of his right to have counsel present, it follows that it was not a statement in need of clarification. Nysta, 168 Wn. App. at 39, 42 (declining to use context to interpret or clarify an unambiguous, plain language statement, “ ‘I gotta talk to my lawyer,’ ” that the defendant made to law enforcement). It is true that “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.” Davis, 512 U.S. at 461. We note, however, that the subsequent conversation that occurred in this case did not provide clarification equivalent to that shown in the decisions cited by the State. In Piatnitsky, when the defendant indicated he did not want to talk, the detectives clarified precisely, “So you’d rather take a written statement, do a written one,” to which Piatnitsky answered, “Yes. I don’t know (unintelligible).” 180 Wn.2d at 410. And in Whitaker, when the defendant asked about the process of obtaining counsel, the record showed “the agents also told Whitaker he could request an attorney ‘at that moment’ ” and “clearly stated that if he asked for an attorney all questioning would stop.” 133 Wn. App. at 216. We agree that if the detectives here had been faced with an ambiguous request for counsel and wished to clarify, it would have been appropriate to do so, but, especially coupled with the statement counsel was not available that night, they never provided Wilson the same clarity about his immediate right to counsel that the questioning agents did in Whitaker. Regardless, Wilson had made clear his request to have counsel.
18 No. 84551-9-I/19
Having reviewed de novo Wilson’s statements, their context, and the video
and audio recording of the interview, we conclude Wilson unequivocally invoked
his right to counsel. The admission of the interview at trial was error.
II
An error in failing to suppress evidence obtained in violation of Miranda
infringes the defendant’s Fifth Amendment right against self-incrimination and is
presumed prejudicial. State v. Spotted Elk, 109 Wn. App. 253, 261, 34 P.3d 906
(2001) (citing State v. Miller, 131 Wn.2d 78, 90, 929 P.2d 372 (1997)); State v.
Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996); State v. Caldwell, 94 Wn.2d
614, 618, 618 P.2d 508 (1980)). “ ‘[C]onstitutional error may be considered
harmless if we are convinced beyond a reasonable doubt that any reasonable trier
of fact would have reached the same result despite the error.’ ” State v. Scherf,
192 Wn.2d 350, 370, 429 P.3d 776 (2018) (alteration in original) (quoting State v.
Thompson, 151 Wn.2d 793, 808, 92 P.3d 228 (2004)). To make this
determination, the court uses the “ ‘overwhelming untainted evidence’ ” test. Id.
The court considers the untainted evidence admitted at trial to determine if it is so
overwhelming that it necessarily leads to a finding of guilt. Id. This requires that
we review the balance of the trial evidence.
The State agrees the focus at trial was whether Wilson premeditated and
intended murder, both of which were disputed. A person is guilty of first degree
murder when with a premeditated intent to cause the death of another person, the
person causes the death of such person. RCW 9A.32.030(1)(a). “ ‘Premeditation’
involves a deliberate formation of and reflection on the intent to take a human life
19 No. 84551-9-I/20
and includes the mental process of thinking beforehand, deliberation, reflection,
and weighing or reasoning for a period of time, however short.” State v. Aguilar,
176 Wn. App. 264, 272-73, 308 P.3d 778 (2013). A wide range of proven facts will
support an inference of premeditation. Id. at 273.
The State first points to what it calls “important admissions of guilt” by
Wilson, starting with his statements at the scene. Firefighter and Emergency
Medical Technician Justin Bodolay testified he examined Wilson at the scene on
June 10, 2019. Bodolay testified Wilson was alert and oriented as to time, place,
person, and event. In addition to Wilson’s statements described above to Horton,
the 911 operator, and officers at the scene, Officer Brett Willet took Wilson to a
hospital after 10:00 p.m. on the night of the incident to have his blood drawn. At
the hospital, Wilson said to the officer, “ ‘reality was starting to set in.’ ” About a
year after the incident, Horton again spoke with Wilson over the phone while he
was in jail. During the conversation, Horton asked Wilson if Lila Wilson threatening
to leave with S. caused him to become so angry, and Wilson agreed. Further,
Horton testified that Lila Wilson and Wilson were hot-tempered and would
frequently get into verbal arguments, beginning when Lila Wilson first started living
only with Wilson at around age 17. Lila Wilson later moved in with Wilson again,
along with her husband and S. According to Horton, Wilson “fought depression,”
and S. made him a much happier person.
The State next points to statements Wilson made to the State’s expert
witness, Kenneth Muscatel, PhD. After Wilson called an expert witness who
testified Wilson lacked the capacity to form intent or a premeditated intent, the
20 No. 84551-9-I/21
State called Dr. Muscatel as a rebuttal witness. Dr. Muscatel is a licensed clinical
psychologist whose work includes forensic and neuropsychology. Dr. Muscatel
has experience as an expert witness in posttraumatic stress, anger management,
and completed evaluations for hundreds of homicide cases. Dr. Muscatel met with
Wilson three times in person, the first time about two years after Wilson’s arrest.
Dr. Muscatel reviewed Wilson’s medical records and Wilson’s expert’s assessment
of those records.
Dr. Muscatel opined that Wilson had the capacity to form intent and felt
Wilson’s behavior and statements indicated that he would have had the time and
ability to premeditate. Dr. Muscatel described his understanding of the day’s
events: an argument between Wilson and his daughter, the escalation when his
daughter threatened to move out, potentially moving to Thailand with S. and her
husband, Lila Wilson slamming the bedroom door in Wilson’s face, Wilson going
into the other bedroom, Wilson retrieving his gun from its case on a shelf,
chambering a round, and returning to the bedroom where his daughter was, and
shooting her repeatedly. Dr. Muscatel concluded Wilson was in a coherent state
of mind during his 911 call and interviews; he did not appear mentally impaired or
cloudy. Dr. Muscatel pointed to the following “series of activities” Wilson engaged
in as evidence that his actions were borne out of anger, not fight or flight: after
getting the door slammed in his face, Wilson went to another room in the
apartment, retrieved the gun, and then came back with the gun. Dr. Muscatel said
this sequence of events “does not suggest a simple act of impulsive rage” and
21 No. 84551-9-I/22
while impairments are “certainly present, they wouldn’t reach the level that you
could not form requisite intent.”
The State further argues Wilson’s statements in the interview would have
been admissible to “impeach” Wilson’s expert witness. Wilson called expert
Robert Stanulis, PhD, a forensic psychologist and neuropsychologist. Dr. Stanulis
has experience and training working with patients who had epilepsy seizures. Dr.
Stanulis met with Wilson in September 2020, April 2021, and September 2021.
The conversations in these interviews covered several topics, including Wilson’s
personal history, medical conditions, and the incident. Dr. Stanulis reviewed about
5,000 pages of medical records, police reports, interview transcripts, and Wilson’s
statements made to the police. Dr. Stanulis’s report listed 44 different diagnoses.
The State points to instances in which Dr. Stanulis indicated Wilson had difficulty
recalling the events of the shooting, and argues that in response “the State would
have been entitled to show that the defendant’s detailed statements made
immediately after the crime were more reliable than those made to a hired expert
preparing for trial because such facts are relevant to his capacity.”
As to Wilson’s statements relied on by an expert witness, the State
overlooks that such statements would not have been admissible as substantive
evidence and would have been subject to an appropriate limiting instruction. State
v. Caril, 23 Wn. App. 2d 416, 428, 515 P.3d 1036 (2022), review denied, 200
Wn.2d 1025, 522 P.3d 50 (2023), cert. denied, 144 S. Ct. 125, 217 L. Ed. 2d 39
(2023). An expert witness is permitted to base an opinion on facts or data that are
not admissible in evidence if the facts or data are “ ‘of a type reasonably relied
22 No. 84551-9-I/23
upon by experts in the particular field in forming opinions or inferences upon the
subject.’ ” Id. at 427 (quoting ER 703). An expert’s testimony disclosing
inadmissible facts or data to explain the expert’s opinion is not proof of them as
substantive evidence. Id. at 428. This rule would have limited the purposes for
which the jury could have considered Wilson’s statements to the extent Dr.
Muscatel relayed them.
As to Dr. Stanulis’s reports about Wilson’s reported memory several months
after the shooting, we are not convinced the State’s authorities would have justified
the wholesale playing of the interview as a response. In State v. DeGraw, the
defendant called an expert witness who testified that at the time of a murder the
defendant lacked recall of events and confirmed his belief based on the
defendant’s statements the defendant had had a “prolonged blackout.” 196 W.
Va. 261, 266, 470 S.E.2d 215 (1996). In rebuttal, the trial court permitted the State
to introduce statements the defendant had made voluntarily, but before Miranda
warnings, to the effect that the defendant acknowledged how police had learned
of injuries he had received in the murder and acknowledged his flight from the state
afterwards. Id. at 267 & n.8. On appeal, the court held that based on the defense
expert testimony, the defendant’s voluntary statements contradicting his
representations to his expert could be offered solely for impeachment purposes
either during the cross-examination of the expert or in rebuttal. Id. at 270.
DeGraw relied on Wilkes v. United States, where before being given
Miranda warnings the defendant voluntarily told police where he had discarded the
murder weapon and, albeit without ever saying what “ ‘it’ ” was, said three times
23 No. 84551-9-I/24
“ ‘I did it.’ ” 631 A.2d 880, 882 (D.C. 1993). At trial, the defendant called an expert
witness who based his diminished capacity opinion in part on the defendant’s
statement to him that the defendant “lacked any memory of the events surrounding
the charged offenses.” Id. at 883. The appellate court affirmed admission of the
defendant’s statements to police, explaining, “We do not think that such a
defendant should be allowed to lie to the psychiatrist and get away with it when
there is evidence tending to show that he lied and that the psychiatrist’s diagnosis
was based on that lie.” Id. at 890 (alteration in original); cf. People v. Edwards, 11
Cal. App. 5th 759, 763, 217 Cal. Rptr. 3d 782 (2017) (defendant’s statements to
police and to defense expert were “inconsistent,” raising concerns regarding
“which version was valid”).
The State does not point to any reversal by Wilson similar to those by the
defendants in DeGraw and Wilkes. The State points merely to Dr. Stanulis’s
relaying that Wilson had some diminution in recall months later, but Wilson at no
time denied all recall or claimed “blackout” after having made incriminating
statements disproving such a claim as the defendants did in DeGraw and Wilkes.
And the State emphasizes that its expert Dr. Muscatel in a similar interview was
able (following the outline of the Detective Edwards interview) to walk through the
same chronology of events with Wilson. Even if there were some particular
statement relayed by Dr. Stanulis genuinely contradicted by a particular statement
Wilson made to Detective Edwards—which the State has not shown—the State is
far short of demonstrating that “[t]he truth-seeking process would be frustrated”
24 No. 84551-9-I/25
unless it were permitted to respond to Dr. Stanulis’s testimony by playing the same
nearly hour-long interview that it presented at trial. Wilkes, 631 A.2d at 889.
The State last argues that what it calls the “weakness” in Wilson’s expert’s
opinions bears on the harmless error analysis. Dr. Stanulis testified Wilson lacked
the capacity to form intent or a premeditated intent. Dr. Stanulis opined that Wilson
suffered a seizure on June 10, 2019 and that Wilson suffers from Posttraumatic
Stress Disorder (PTSD). Wilson took hydrocodone for the first time the day of the
incident, which made it more likely to have a seizure or changes in the electrical
activity of the brain. Bodolay at the scene observed dried blood around and inside
of Wilson’s mouth, though he did not have any concerns about the blood. Dr.
Stanulis noted the blood found in Wilson’s mouth and his possibly chewed tongue,
saying this can be an indicator of seizures of which Wilson was not aware. Dr.
Stanulis believed that Wilson then had postictal confusion impacting his capacity.
Dr. Stanulis testified that Wilson has complex PTSD due to enduring one
trauma event after another, including abuse at an early age by his father, joining
the military during the Vietnam War and experiencing combat-related trauma, and
the deaths of his sister and one of his children in a motor vehicle collision. Dr.
Stanulis noted Wilson’s score of 7 out of 10 on an adverse childhood experience
checklist was “a very, very high level.” Dr. Stanulis described PTSD as influencing
decision making through reactive instincts as opposed to rational thought. Dr.
Stanulis opined that one can infer from Wilson’s behavior on June 10, 2019 that
he was showing symptoms of PTSD: he was feeling highly threatened and so he
25 No. 84551-9-I/26
responded the way he had rehearsed, with a gun for self-defense, which he
learned from his time in the military.
Finally, Dr. Stanulis addressed Dr. Muscatel’s report’s reliance on “goal-
oriented” behavior, such as “walking presumably from one room to the other into
the bedroom to get the gun and coming back and discharging the gun.” Dr.
Stanulis testified this behavior did not constitute capacity and end the analysis,
because “you can have goal-oriented behavior without thinking” and “goal-oriented
doesn’t equal intent in the law.” Dr. Stanulis disagreed that one can infer the
premeditated intent or intent just by looking at behavior. The parties thus
presented conflicting expert testimony on Wilson’s capacity, and it is clear from the
jury’s questions during deliberations asking for more information on premeditation
and for copies of the experts’ reports that the testimony was a focus for the jury.
Dr. Stanulis’s opinions were based on extensive review of Wilson’s medical and
social history, and were sufficiently robust to make the trial evidence less lopsided
in the State’s favor than the State portrays on appeal.
The untainted evidence that remains after excising the Detective Edwards’s
interview with Wilson is Horton’s testimony about Wilson’s phone calls with her,
Wilson’s 911 call, Wilson’s statements at the scene, and, nonsubstantively,
Wilson’s statements to Dr. Stanulis and Dr. Muscatel. These sources reflect
Wilson’s statements to Horton that he was “ ‘going to kill Lila,’ ” “ ‘I killed Lila. I
shot her,’ ” and Wilson’s agreeing that Lila Wilson threatening to leave with S. is
what caused him to become so angry; Wilson’s statements to the 911 operator
that he shot Lila Wilson because “ ‘we’ve been having a lot of arguments and today
26 No. 84551-9-I/27
it just finally got totally out of hand’ ”; Wilson’s statements to Officer Sagiao that
after they argued about putting up a baby gate, Lila Wilson said, “I’m leaving right
now. I just want to go,” she slammed her bedroom door in Wilson’s face, he “went
and got my gun, and I shot her,” the gun was located in a closet “way up on the
shelf” and not under a lock; and Officer Sagiao’s testimony that he believed it was
Lila Wilson’s room where Wilson retrieved the gun and believed that he asked
Wilson if he intended to kill Lila Wilson and believed Wilson said he did. What is
less apparent from this evidence is over what period of time the argument and
subsequent shooting occurred, where the argument took place in the apartment,
where Wilson had to go to retrieve his gun, whether the gun was already loaded
and charged, and Detective Edwards’s discussion with Wilson about his rage over
Lila Wilson’s threatening to leave with S. and discussion of “dominance” and
“power.”
In arguing intent in closing, the State pointed to Wilson’s scene statements
but then argued that the “facts” corroborated those statements, pointing to the
detailed chronology Detective Edwards established in the interview as
confirmatory proof. In arguing premeditation, the State again relied on the same
step-by-step narrative Detective Edwards elicited to argue Wilson’s deliberate
decisions. At oral argument, the State conceded the interview was its “best
evidence” to support its theory that Wilson possessed the capacity to premeditate
and intend to kill Lila Wilson.9 We cannot say beyond a reasonable doubt the jury
9 Wash. Court of Appeals oral argument, State v. Wilson, No. 84551-9-I
(Apr. 23, 2024), at 27 min., 50 sec. to 28 min., 06 sec. and 28 min., 50 sec. to 29
27 No. 84551-9-I/28
would have reached the same verdict in the absence of the Detective Edwards
interview admitted as substantive evidence.
We therefore reverse the judgment of conviction. In the event of retrial, the
interview with Detective Edwards must be excluded as substantive evidence under
Miranda. Our opinion does not foreclose its use for other proper purposes,
including as the basis for expert opinion and impeachment, subject to appropriate
limiting instructions. In light of our disposition, we do not reach Wilson’s claim of
error in his statement of additional grounds concerning an alleged violation of his
right to a jury trial.
Reversed and remanded.
WE CONCUR:
min., 59 sec., https://tvw.org/video/division-1-court-of-appeals- 2024041198/?eventID=2024041198.