### 2014

## DEC - 

## 9 Ail 10 :2y Uat BY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

STATE OF WASHINGTON,

v. SERGEY FEDORUK, DIVISION II
Respondent,

Appellant. No. 43693 -1 - II PART PUBLISHED OPINION

BJORGEN, A.C.J. 

### Ajury found Sergey Fedoruk guilty ofsecond degree murderforthe 

### death ofSerhiy Ischenko, Fedoruk's relative by marriage. Fedoruk appeals, arguing that (1) he received ineffective assistance ofcounsel 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 ofinnocence, encouraging thejury to decide the case on grounds otherthan reasoned evaluation ofthe 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,thejury 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, andNo. 43693 -1 - II



### Fedoruk has shown a reasonable probabilitythatthe deficient performance prejudiced him. Accordingly,we reverse Fedoruk's conviction and remand for furtherproceedings.

We also address the prosecutorial misconduct argument in the published portion ofthis opinion and the admission of Fedoruk' s statements in the unpublished portion, because those 

### issues may recur on remand. Because aparty' s entitlementto an included offense instruction depends on the facts ofthe case, andthe evidence presented may well differ on remand,we do not decide whetherthe trial court erroneously declined to instruct thejury on manslaughter. FACTS A. Fedoruk' s History of Mental Illness 

### Fedoruk has a long history ofserious 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 Fedorukhas a history ofpoor compliance with the medication regimens. 

### In 2002, Fedoruk' s family members reported to police that he had threatened them. Responding officers took Fedorukto the emergency room,where doctors prescribed 

### antipsychotic medication. During a2007 competency evaluation, doctorsat 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 ofinsanity.

2No. 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 ofthe 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 ofraping afamily 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) andthree 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 ofa series ofincidents in which Fedoruk engaged in increasingly strange behavior, including angry outbursts directed at Ischenko and 

### others. The family's concerns increased overthe course ofthe 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 itwas only a safety precaution and Fedorukwas not under arrest. 

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

### surrounding grounds. As theywalked the perimeter ofthe property, one ofFedoruk's brothersin-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 ProceedingsNo. 43693 -1 - II



### VRP) at 121 -22. Dzhumaniyazov ledthe 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 talkto 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 ofTatyana, get goats. VRP at 907 -08. 

### After Deputy Robinson transported Fedorukto the sheriffs department, ChiefCivil 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).
4No. 43693- 1- 11



### room, but Deputy Gilchrist,who interpreted Fedoruk's statement to mean that Fedorukwas willing to speakto him, remained. 

### Deputy Gilchrist interviewed Fedorukwithout an interpreter2 for an hour and a half. After Fedoruk asked for an attorney, Deputy Gilchrist terminated the interview and released Fedorukto the custody ofOfficer 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, Fedorukwas initially uncooperative withjail staff,who frequently used force to restrain him. After an incident in which Fedoruk "had pretty much bitten offone of his fingers," the trial court, over Fedoruk's objection, entered an order directingjail staffto 

### 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 Fedorukto 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 afactual and rational understanding ofthe criminal proceedings he faces or .. . with his capacityto assist counsel in his defense. CP at 45. Fedoruk proceeded to stand trial. 

### 2 Fedoruk has limited English proficiency and hadthe assistance ofatranslatorat all proceedings in the trial court.No. 43693 -1 - II 

### The court held a hearing to considerthe admissibility ofFedoruk'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 notwantto talkto 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 limittestimony 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 ofputting forward an aff i rmative defense ofdiminished capacity or arguing that ... Fedoruk was incapable
offorming 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 whetheror notthe State' s proven,specifically,thathe intendedto committhe 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 aboutNo. 43693 -1 - II



### diminished capacity or mental disease ordefect, and ruled thatthejurywould not be instructed on diminished capacity. Five days later, on the day beforejury selection began, Fedoruk's counsel moved for a 60 - day continuance to pursue an affirmative defense ofnot guilty by reason ofinsanity. 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 afterthe 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 talkwith Fedoruk about the commencement ofthetrial 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 ofthe 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 afactual foundation forthe basis to continue [ and] that diligence has not been shown." VRP at 406.No. 43693 -1 - II

D. Evidence About the Night ofTschenko' 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 examinertestified that Ischenko died from blunt force trauma, and possibly 

### also strangulation. A crime laboratory analysttestified thatthe DNA (deoxyribonucleic acid) profile obtained from bloodstains on Fedoruk's clothing matched Ischenko' s. DNA from numerous bloodstains at the end ofthe 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 ofthe crime as charged,the prosecutor asked thejury, 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 ofher 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 ofFedoruk'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 aphoto of Ischenko, alive and smiling, underthe heading Serhiy Ischenko." Ex. 287. The third shows Ischenko' s naked, battered body on the autopsy 

### table underthe 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 ofexhibit 287, slide 27, and concentric rings ofa target, corresponding to various pieces ofevidence, 

### appearing onthe 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 ofIschenko' s body in the ravine underthe heading " Murder 2." Ex. 287. On the final slide, under an enlarged " Murder 2" heading, theNo. 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 

### bythe Defendant. Murdertwo. The Defendant is guilty, guilty, guilty. Thankyou. VRP at 1810. Fedoruk did not objectto any portion ofthe State' s closing argument, or to the PowerPoint presentation. 

### In its closing,the defense soughtto exploitthe lackofdirecttestimony 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. 

### Thejury 

### returned a guilty verdict,finding by special interrogatorythat Fedorukcommitted intentional murder, not felony murder predicated on assault. Fedoruktimely appeals. ANALYSIS I. INEFFECTIVE ASSISTANCE OF COUNSEL 

### Fedoruk contends thathis counsel' s failure to timely investigate a mental health defense by consulting with a qualified expert deprived Fedoruk ofthe effective assistance ofcounsel 

### guaranteed bythe Sixth Amendment ofthe United States Constitution. We agree.

10No. 43693 -1 - II

A. Standard of Review and Controlling Law 

### We review claims ofineffective assistance ofcounsel 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 ofshowing 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 benchmarkforjudging any claim of ineffectiveness must be whether counsel' s conduct so undermined the proper functioning ofthe
adversarial process that the trial cannot be relied on as 

### having produced ajust 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 ofcounsel includes assistingthe 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 ofthe 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, ... 

### atthe 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.

11No. 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 extentthat reasonable professional judgments support the limitations on investigation." Strickland,466 U.S. at 690 - 91. Thus, "

### counsel has adutyto 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 setforth bythe Ninth Circuit Court of Appeals:

Counsel have an obligation to conduct an investigation which will allow a determination ofwhat sort ofexperts 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 ofBrett, 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 outthat the record on appeal does not make entirely clearwhat 

### investigation Fedoruk' s counsel may have conducted. Counsel's statements atthe hearing onthe motion to continue, however, establish that the defense had not retained a mental health expert or 

### had Fedoruk's mental condition as ofthe date ofthe crime evaluated by a qualified mental health professional. Initially,defense counsel described the basis forthe continuance motion as follows: " an issue has arisen that creates a requirement ... to pursue a defense theory not previouslypursued." VRP at 395 ( emphasis added). Counsel further stated that "[ t]here was no

12No. 43693- 1- 11



### evidence to support or suggestthose defenses priorto" interviewing Fedoruk afterthe CrR 3.5 

### hearing, and that "we have obtained otherpriorhistory thatwould 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 ofmental illness outlined above, all ofwhich was available to the defense from the beginning ofthe case, indicates that the decision not to seek to retain an expert 

### to evaluate Fedoruk until the day beforejury 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 ofgoing to trial on atheory ofgeneral denial without 

### first getting an expert opinion regarding Fedoruk' s mental health atthe time ofthe killing. In light ofthe 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 ofa capital murder trial deprived him ofeffective 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 oflittle instruction because counsel

13No. 43693 -1 - II



### in that case had retained an expert priorto 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 belowthe standard ofreasonableness based on several deficiencies, including failure to investigate a mental health defense: W]hen counsel knew or had reason to know ofa 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 atimely appointment of investigators; (5) 

### sought atimely appointment ofqualified 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 ofthese 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 ofthe 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 ofthe other deficiencies the Brett court identified, however, also appear to be 

### present here. Specifically, Fedoruk' s counsel also did not seek "timely appointment ofqualified
mental health experts," nor " adequately prepare[ d] ... 

### by retaining, ifnecessary, 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:

14No. 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 howto best represent him in both the guilt and penalty phases ofthe trial. 142 Wn.2d at 883. 

### Viewed consistently with Brett,the failure to investigate amental health defense for Fedoruk fell below an objectively reasonable standard. C. Prejudice We now turn to the question ofwhetherthe 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, butforthe deficient performance, the result ofthe 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 showthat counsel' s deficient conduct

more likely than not altered the outcome in the case," but must demonstrate a probability ofa 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 inthe record showingthat any expertwould be abletotestifythat he was legally insane or lacked the capacityto 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 argumentthat his attorney's failure to present experttestimony in support ofa diminished capacity defense denied himthe effective assistance ofcounsel. The Turner court

15No. 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 expertwould have testified that 

### Turner lacked the ability to form the specific intent required to committhe 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, Fedorukwas only 

### evaluated for competency to stand trial, notfor legal sanity atthe time ofthe killing. The 

### examining psychologist expresslyopined that "Fedoruk does have amajor mental illness, but he 

### is not currently experiencing symptoms ofa mental disease or defect thatwould" render him incompetent to stand trial. CP at 45 ( emphasis added). 

### The facts underlying Turner are distant enough fromthose presented here to rob it ofany 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 ofinsanity ofa number offelony charges, based on evaluations from two qualified professionals. His history ofserious mental illnessis well documented, as set out in the Facts, above. His actions on the night ofthe killing were bizarre 

### under anyyardstick,as shown bytestimony 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 ofthe trial would have differed had Fedorukbeen able to present an insanity or diminished capacity defense. Although not conclusive, this evidence is sufficient to 

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

### outcome" actually obtained. Strickland,466 U.S. at 694. Withthat, Fedorukwas prejudiced by
16No. 43693 -1 - II



### the failure to investigate a mental health defense. Accordingly, Fedoruk received ineffective assistance ofcounsel, 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 reviewdespite defense counsel's failure to object. Specifically, Fedoruk claims that the prosecutor (1) undermined the presumption ofinnocence by telling thejurythat Fedoruk's failure to rebut portions ofthe State' s evidence amounted to agreement" with the State' s case; (

### 2) encouraged thejuryto decide the case based on irrational
considerations rather than probative evidence and sound reason; (

### 3) showed thejury evidence 

### not admitted at trial; and (4) invaded the province ofthejury by expressing personal opinions on questions offact. We agree that some ofthe 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 ofthe record and all of


### 3 Fedoruk also arguesthat his counsel unreasonably failedto objectto the State's closing argument. Because we reverse based on ineffective assistance ofcounsel for failing to investigate a mental health defense, we need not address this argument. For the same reason, we 

### need not address Fedoruk' s argumentthat the trial court erred in denying his motion for a continuance. 17No. 43693 -1 - II
the circumstances of the trial." 

### In re Pers. Restraint ofGlasmann, 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 ofh[ er] public office ... and the expression of h[ er] own belief of guilt into the scales against the accused ' deprives the defendant ofthe constitutional right to a fairtrial. 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 ofthe

### jury.'" Glasmann, 175 Wn.2d at 704 (quoting AM.BARASS' N, STANDARDS FOR CRIMINAL JUSTICE std. 3- 5. 8( c) ( 2d ed. 1980)). Although a prosecutor may 

### point out a lack ofevidentiary support forthe defendant' s theory ofthe 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).

18No. 43693 -1 - II 

### In Glasmann,the prosecutor used a PowerPoint presentation featuring images taken from a security camera video, pictures ofthe victim' s injuries, and the defendant' s booking 

### photograph,with added commentary and texttaken from trial testimony orwitnesses' recorded
statements. 175 Wn.2d at 701. 

### A series ofslides 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 ofthe crimes for which the State has charged him, but the 

### evidence in this case proves overwhelminglythat he is guiltyas charged, and that's 

### what the State asks you to return in this case: Guilty ofassault 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 October23rd,2004, byfinding him guilty as charged. Thankyou." Glasmann, 175 Wn.2d at 702. The defense did not object. Glasmann, 175 Wn.2d at 702. 

### In holding thatthe 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 ofany material by ajury not properly admitted as evidence vitiates averdict 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 

### argumentthat ithad merely combined properly admitted evidence with argument based onthe law and facts, the Glasmann court held that "the prosecutor's modification ofphotographs by adding captions was the equivalent of unadmitted evidence," and " a prosecutor must be held to

19No. 43693 -1 - II



### knowthat it is improper to present evidence that has been deliberately altered in orderto 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 swaythejury" and quoted at length from the commentaryto the American Bar Association, Standardsfor Criminal Justice:



### The prosecutor's argument is likely to have significant persuasive force with the jury. 

### Accordingly, the scope of argument must be consistent with the evidence and marked bythe fairnessthat should characterize all ofthe 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 ofthe prestige associated with the prosecutor' s office 

### but also because ofthe fact - finding facilities presumably available to the office." 175 Wn.2d at 706 ( quoting commentary to std. 3 -5. 8). The courtwent 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 guiltthrough 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 ofIschenko' s bodywith "Murder 2" appearing in large red letters above them. Yetthe State presented four such images to thejury during closing argument. As in Glasmann, "

### the multiple altered photographs here may well have affected the 

### jurors' feelings aboutthe need to strictly observe legal principles and the care [they] musttake in determining [the defendant' s] guilt." 175 Wn.2d at 706. 

### The State correctlypoints outthatthe presentation here differs in some respects from that in Glasmann. With the exception ofthe red " Murder 2" heading that appeared over all buttwo ofthe slides, the presentation here did not combine images from the evidence with testimony and
20No. 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 ofFedoruk,she did flatly
state that "[

### t]he Defendant is guilty, guilty, guilty" while flashing the word "GUILTY" in front
of thejury 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 ofwhat the evidence showed and the verdict the State askedjurors to return. 

### Here, the prosecutor did not make the challenged statements only in rebuttal as afair 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 ofthe evidence, buta discussion ofIschenko' s virtues, inviting thejury to decide the case based on sympathy. The prosecutor here did not couch herassertions ofguilt in terms ofthe evidence in the case, and she reinforced those assertions with inflammatory images similar to those held improper in Glasmann. The prosecutor conveyed to thejury her 

### personal opinion that Fedoruk was guilty. This argument was improper. C. Appeal to Intuition In addition, the prosecutor' s argument suggested that thejurors should take the fact that 

### Fedoruk' s family members suspected Fedorukbased ontheir "intuition" as evidence ofhis 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 encouragedjurors to decide the

case based on considerations other than " probative evidence and sound reason." CastenedaPerez, 61 Wn.App. at 363. Further, the prosecutor here did not make these arguments in 

### rebuttal as a fair response to some related argument bythe defense. Instead, this appeal to the
21No. 43693 -1 - II
J



### jury to infer guilt from others' intuitions served as thetheme ofherprepared remarks. Therefore, this argument was improper. D. Characterization of Fedoruk' s Failure to Rebut the State' s Evidence as " Agreement" 

### In closing,the prosecutoralso 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 afalse depiction ofwhat Fedoruk said and 

### undermined the presumption ofinnocence bytransmuting 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. ofResp't at 65. Although true, at least in the first instance thatthe prosecutor used the word,this falls far short ofestablishing thatthe 

### remarks did not effectively comment on Fedoruk's failureto 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 onthe lack ofdefense evidence by arguing that because he did notpresent contrary evidence, Fedoruk agreed with the State' s position. This, also, was improper.

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

22No. 43693 -1 - II



### A majority ofthe panel having determined that onlythe foregoing portion ofthis 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 INSTRUCTTHE JURY ON MANSLAUGHTER AS A LESSER INCLUDED OFFENSE 

### Fedoruk argues thatthe trial courtviolated his statutory and constitutional rights to have 

### thejury considerfirst degree manslaughteras a lesser included offense ofsecond degree intentional murder. Under State v. Workman, 90 Wn.2d 443, 447 - 49, 584 P. 2d 382 ( 1978), the resolution ofthat 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 madeto law
enforcement officials for one or more ofthree different reasons: ( 1) he did not make the
statements voluntarily; (2) he made the statements under custodial interrogation without having been advised ofhis 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 ofthe findings and 

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

### conviction forthe reasons set out above, it is not necessaryto 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.

23No. 43693- 1- 11

A. Voluntariness 

### In reviewing a due process claim that a suspect made statements to police involuntarily, we considerwhether, underthe totality ofthe 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 necessarilyfact - specific. Gallegos v. Colorado, 370 U.S. 49, 52, 82 S. Ct. 1209, 8 L. Ed. 2d 325 ( 1962). " The length ofthe questioning, the use
of fear to break a suspect, [and] the youth ofthe accused are illustrative ofthe circumstances on
which cases ofthis kind turn." Gallegos, 370 U.S. at 52 ( citations omitted). Also relevant is the failure of police to advise the defendant ofhis 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 whatsoeverto 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 griefand 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.

24No. 43693 -1 - II 

### To illustrate the kind ofshowing necessaryto establish that statements were involuntary, in a recent federal case involving a 17-year - old suspect, Doodyv. Ryan, 649 F.3d 986 (9th Cir. 2011), 

### the court held a confession involuntary where teams ofpolice officers interrogated the 

### boy in shifts forover 12 hours. Fedorukdoes not come closeto 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 offact entered by atrial 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 atrial 

### 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 intelligentlywaived his Miranda 

### rights. See In re Pers. Restraint ofCross, 180 Wn.2d 664, 680 -81, 327 P.3d 660 (2014) invocation and custody present mixed questions oflaw and fact subjectto 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 ofthe right to remain silent " is essentially a legaljudgment "). 

### We are not bound by atrial court's 

### mischaracterization ofa legal conclusion as a finding offact. State v. Ross, 141 Wn.2d 315, 309- 10, 4 P.3d 130 ( 2000).

25No. 43693 -1 - II
1. Custodial Interrogation While on the Porch 

### Fedoruk argues thatthe trial court erred in admitting statements he made while on the porch at his home priorto being advised ofhis 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 ofhis freedom ofaction in any significantway" 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 

### givethese advisements renders any statements elicited inadmissible for most purposes in a 

### criminal trial. Stansburyv. 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 ofthe circumstances surrounding the 

### interrogation, but "the ultimate inquiry is simplywhetherthere [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 26No. 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 ofmovement 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 ofview 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 

### repeatedlytold himto keep his hands outofhis pockets andprohibited him fromgoing back inside the house. Before asking Fedorukabout 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 apparentlytried to do so a number oftimes 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, Fedorukwas in custody 

### for purposes ofMiranda. The trial court erred in concluding thatFedoruk was not in custody until placed in the patrol car and in admitting statements Fedorukmade after being cuffed but before Deputy Robinson administered the Miranda warnings.

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

### Fedoruk argues thatthetrial court also erred in admitting the statements he made to 

### Deputy Robinson in the patrol car after being read the Mirandawarnings because police

27No. 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 notthe product ofinterrogation, however,the prophylactic rules laid down in Miranda do not apply, and Fedoruk's invocation ofthe rightto remain silentthus 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 ofthe 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 notthe 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 ofthe police (other than 

### those normally attendant to arrest and custody) that the police should know are reasonably likelyto 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, onthe grounds thatthe statement was not prompted by questioning or other conduct equivalentto interrogation, and the actions ofthe police were 

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

### By merely returning to the patrol carto retrieve some papers, Deputy Robinson did not do anything that he should have knownwas reasonably likelyto elicit an incriminating response:
28No. 43693 -1 - II



### Deputy Robinson's conduct was merely that normally attendantto 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 at242 - 43, qualified as a knowing and intelligent waiver ofthe rightto remain silent with respect to Deputy Gilchrist. 

### The admissibility ofstatements 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 rightto cut offquestioning. 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 ifa conversation [following invocation ofthe rightto counsel] 

### is initiated bythe 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 forthe rightto remain silent. See Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 ( 2010).

29No. 43693 -1 - II Whether a suspect, after 

### invoking his Miranda rights, " initiate[d]" further discussion depends on whether the suspect' s subsequent statement " evinced awillingness and a desire for a generalized discussion about the investigation," or was " merely a necessary inquiry arising out of the incidents ofthe custodial relationship." Bradshaw, 462 U.S. at 1045 -46. Whether a purported waiver ofthe right to counsel or the right to remain silent is valid depends on the totality of the circumstances, "` 

### including the necessary fact thatthe 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, ifhe 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 allowan interrogee effectivelyto 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'twantto talkto you" as an expression of Fedoruk' s willingness to speak to him in Detective Reece' s absence, he 

### was underthe erroneous understanding that Fedorukhad previously expressed to Deputy Robinson a willingness to speakto 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 thetwo situations is onlythattwo officers were present in the second instance, and Fedoruk allegedly pointed at one, Detective Reece, as he uttered the words. The record makes
30No. 43693 -1 - II

clear, however, that Detective Reece was the lead investigator in charge ofthe interrogation and that Fedoruk' s hands were cuffed together. Thus, Fedoruk was only capable ofpointing at one 

### officer at atime, and pointed to the officer in charge ofthe interrogation. We hold that, by 

### interrogating Fedorukfor an hour and a halfwithout 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 ofa mental health defense amounted to deficient performance and that 

### Fedoruk has shown a reasonable probability thatthe deficient performance prejudiced him. Accordingly, we reverse Fedoruk's conviction and remand forfurtherproceedings consistent with this opinion.

We concur:

MAxn

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