### FILED **DECEMBER 8,**  **2016 In**  **the Office**  **of the**  **Clerk of** **Court WA**  **State Court**  **of Appeals,**  **Division III** 



## IN**THE COURT** **OF APPEALS**  **OF THE** **STATE OF**  **WASHINGTON**

**DIVISION THREE**  **STATE OF**  **WASHINGTON,**

**Respondent,**

**V.** 

### RAY**LENY BETANCOURTH,** 

**Appellant. )**  **) )**  **) )**  **) )**  **) )**  

### No. **32683-7-III**

**ORDER WITHDRAWING**  **OPINION**

**THE COURT** **on its** **own motion**  **finds that** **the opinion** **filed June**  **30, 2016,**  **should be**  **withdrawn: THEREFORE,**  **IT IS**  **ORDERED, the**  **opinion filed**  **June 30,**  **2016, is** **hereby withdrawn**  **and a** **new opinion** **will be** **filed this** **day. PANEL:**  **Judges Fearing,**  **Siddoway, Pennell**  **FOR THE** **COURT:**

**GEORGE B.**  **F�ARING, ChiM** **Judge**

### FILED DECEMBER8, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent,


### v. RAYLENYBETANCOURTH, Appellant. ) ) ) ) ) ) ) ) ) No. 

### 32683-7-111

UNPUBLISHED OPINION

FEARING, C.J. -Ajuryfound RayBetancourth guilty ofsecond degree felony murder and first degree assault. Wereverse andremand for a newtrial Betancourth's conviction for second degree murder. We affirm his conviction for first degree assault. We also affirm a trial courtruling denying Betancourth's motionsto suppress statements he made duringpolice station interviews andtextmessages subpoenaed from Verizon. FACTS Our statement offacts comes from bothtrial testimony andtwo motions to suppress evidence. Webeginwith sometrial testimony onthe charges ofsecond degree murder and first degree assault against Ray Betancourth. On September 

### 17, 2012,

# j l No. 32683-7-111 State v. Betancourth Betancourth, a resident ofToppenish, noticed damage to windows ofhis Honda Civic. On September 19, on a basis unknown to us, Betancourth identified one ofthe window caperers as Terrence Frank. During the afternoon ofSeptember 19, 2012, Ray Betancourth and his girlfriend, Nancy Arriaga, texted one another: [Girlfriend:] Didyou see the video Eiree posted onFacebook[?] Is that the black guy who broke your window[?] [Betancourth:] Yeah, Ijust-did

.. [Girlfriend:] Is that him? [Betancourth:] Yep. Boththose fools. [Girlfriend:] Cool. Cool. [Betancourth:] Yep, I want to beat the shit ofo' [sic] them. Report ofProceedings (RP) at 1435 (internal quotation marks omitted). In the early evening ofSeptember 19, 2012, Ray Betancourth assembled companions to harass Terrence Frank. Betancourth first summoned Marco Cardenas. Betancourth advised Cardenas that he would shortly retrieve David Chavez and Mario Cervantes. He telephoned Cervantes, while Chavezvisited Cervantes' house. Betancourth informed Chavez and Cervantes that he had located one ofthe men who broke his carwindows and that he "wantedto beathis ass." RP at 905. Ten minutes later, Ray Betancourth, driving a four-door Fordpickup truck, arrived at Cervantes' home with Marco Cardenas riding shotgun. Cervantes and Chavez entered into the backseat of the truck. The quartetjourneyedthrough Toppenish and found Terrence Frank, with

2No. 32683-7-III State v. Betancourth

Jordan Lemus and Jose Rodriguez, walking on a sidewalk along the city's Madison Street. Ray Betancourth stoppedthe pickup truck at a stop sign. David Chavez, from the backseat, then saw Marco Cardenas unfasten his seatbelt and move his hands. Chavez also heard Mario Cyrvantes tell Cardenas to "putthat shit away." RP at 910. David Chavez did not see what object Cardenas placed in his handbecause Chavez sat directly behind Cardenas. Nevertheless, Chavez noticed Marco Cardenasput away the object. Betancourth pulled a firearm from the truck door pocket, and placed it underhis driver's seat. All four exited the truck. The four companions planned for Ray Betancourthto fight Terrence Frank without anyone else scrapping. Betancourth hollered to the three walking on the sidewalk: "Whobroke my windows?" RP at 917. Betancourth, Cervantes, Cardenas, and Chavez then chasedthe otherthree. Terrence Frank ran down the street, while Jordan Lemus and Jose Rodriguez ran into an alley south ofMadison Street. David Chaveztestified that all four pursuers, with Marco Cardenas leading, followed Lemus and Rodriguez into the alley. Lemusjumpeda fence, after whichMarco Cardenas pulled a gun and shottwice. One or bothbullets struck Rodriguez in the head. David Chaveztestified that he did not know thatMarco Cardenas carried a gun until the shots fired. According to Ray Betancourth, before Marco Cardenas fired the gun, Mario 3No. 32683-7-111 State v. Betancourth

Cervantes yelled: "thetruck." RP at 1220. Betancourththen ended his chase out of recognition that he left the pickup unattended and with the engine running. He returned to his truck to tum offthe motor. As he openedthe driver's doorto the pickup, Betancourth heard "popping sounds." RP at 1221. According to Betancourth, he also did not know Marco Cardenas carried a gun. He did not expect Cardenas to shoot anyone. According to David Chavez, Ray Betancourth, Marco Cardenas, Chavez, and Mario Cervantes quickly returned to Betancourth's Ford truck afterthe shooting and the truck sped away. According to Ray Betancourth, once he entered his pickup truck and turned offthe ignition, he noticed Marco Cardenas and David Chavez frantically sprinting to the pickup. Bothhopped into the backseat ofthe truck. Betancourththen heard a thud and saw, through the rear view mirror, Mario Cervantesjumping into the truck's bed. Betancourth, not knowing what transpired, drove away. David Chavez testified that Betancourth, Chavez, and Cervantes asked Cardenas, after the quartet returned to the pickup: "Whatthe fuck, what-what are you doing?" RP at 944. Ray Betancourthtestified he heard David Chavez twice loudly commentto Marco Cardenas: "You shothim." RP at 1223. Cardenas responded: "Youthink so." RP at 1224. Chavez also said to Marco Cardenas: "You fucked up." RP at 1226. The foursome traveled out'ofToppenish. David Chavez testified that Ray Betancourth stopped the pickup truck on a Wapato bridge where Cardenas handed the gun to Betancourth, whothrew it into the river. Betancourth denies stoppingthe truck on 4No. 32683-7-111 State v. Betancourth

abridge orhandling a gun. Betancourth drove the truckto a friend's home in Buena. According to Betancourth, whenthe four arrived in Buena, the three others repeatedly questioned Marco Cardenas why he brought a gun to the fight. At 6:20 p.m. on September 19, 2012, ToppenishPolice Officer Casey Gillette traveled to the alley adjacent to Madison Streetbecause ofa report ofgun shots and ofa

man stricken in the alley. Officer Gillette found a resident ofa nearby house attending to

an unconscious Jose Rodriguez. Officer Gillette summoned medical aid, which arrived and transported Rodriguez to the hospital. Fifteen-year-oldRodriguez died the following day. Witnesses to the chase identified Ray Betancourth's Fordpickup truck as the vehicle used by Jose Rodriguez's assailants. Based on this identification, Toppenish police seized the truck on September 21. The following portion ofthe statement offacts derives from a hearingto suppress statements uttered by Ray Betancourth. Duringthe evening ofSeptember 21, 2012, Betancourth and his father entered the Toppenish police station. ToppenishPolice Detective Jaban Brownell spoke to Betancourth's father aboutthe seizure ofthe pickup truck, while Betancourth stood nearby. Eventually Detective Brownell asked Ray Betancourth to speakwith him, Detective Damon Dunsmore, and SergeantPaul Logan. The police then considered Betancourth a suspect in the shooting death ofJose Rodriguez. Brownell did not mention to Betancourth any reason for requesting the 

### 5No. 32683-7-III State v. Betancourth

interview. Betancourth offered no objection, and Detective Brownell led Betancourthto

an investigations office at the back ofthe police station. Brownell told Betancourththat the interview was voluntary. Betancourth indicated he understood the voluntary nature of the interview, and Brownell further explainedto Betancourththat he could leave at any time. Detective Brownell did not inform Betancourththat the latter was under arrest. Brownell did not place Betancourth in handcuffs. Ray Betancourth's father asked to be present during the September 21 interview of his son, but Detective Jaban Brownell denied the request. Detective Brownell did not ask Betancourth ifhe wished his father present. Brownell and the other officers knew that Betancourth was eighteen years old at the time. The Toppenishpolice investigations office was a converted, small single-wide trailer, approximately nine-feet wide by twenty-feet long, where three detectives worked at desks. Ray Betancourth sat in a chair near the trailer entry door. Detective Jaban Brownell, Detective Damon Dunsmore, and SergeantPaul Logan questioned Betancourth for twenty to thirty minutes inside the trailer. Nobody recorded the questioning. The three officers asked Betancourth about his pickup truck's involvement in the shooting. One or more questions sought to elicit an admission from Betancourth as to his presence at the crime scene. Betancourth denied any involvement in a shooting. Betancourth left the trailer after the officers finished asking questions. We return to trial testimony. SergeantPaul Logan followed Ray Betancourthto 6No. 32683-7-111 State v. Betancourth

the Toppenish police stationparking lot where he asked Betancourth to look at the latter's cell phone. Betancourth gave him permission, and Logan obtainedBetancourth's cell phone number. On September 21, Detective Damon Dunsmore sent apreservation letter to Verizon Wireless to preserve records associated with Betancourth'sphone number. On September 25, 2012, the Yakima County District Courtpurportedly granted a search warrant ordering Cellco Partnership, dba Verizon Wireless (Verizon), to provide Ray Betancourth's cell phone records, including text messages, from September 19 to September 25, 2012. This courthas a copy ofthe affidavit in support ofthe search warrant but not the search warrant itself. Detective Damon Dunsmore faxed the warrant to Verizon's custodian ofrecords in New Jersey, and Verizon sent the text messages to Dunsmore. We return to testimony from the motion to suppress hearing. Duringthe afternoon ofOctober 9, 2012, SergeantPaul Logan called Ray Betancourth and asked him to come to the Toppenishpolice station to answer more questions about the Fordpickup truck. Because he lacked a vehicle, Betancourth's mother drove him to the police station. Detective Damon Dunsmore took Betancourthto the detectives' trailer. Logan and Detective Jaban Brownell soon entered the trailer. Duringthe interview, no officertold Betancourth that he was under arrest or that he could not leave the trailer. No officer delivered Betancourth theMiranda warnings. The interview lasted twenty to thirty minutes. 7No. 32683-7-111 State v. Betancourth Duringthe October 9 interview, the three Toppenish police officers presented incriminating evidence to Ray Betancourth. Detective DamonDunsmore, Betancourth's former school resource officer, remained silent. Detective Jaban Brownell acted polite. SergeantPaul Loganportrayed anger and hurled accusations at Betancourth. Betancourth testified that Logan's behavior intimidated and frightened him, particularly since Logan

was a larger man than Betancourth. Once Logan grew hostile, Betancourth no longer deemed himselffree to leave the trailer. Duringthe October 9 interview, Ray Betancourth initially denied his presence at the scene ofthe shooting ofJose Rodriguez. Detective Jaban Brownell testified at trial: So, I explainedto Mr. Betancourthwhat

... I had believed had occurred. And 

### I explained

...that the defendant was driving with another subject in this white truck, saw the victim and his two friends, returned to another location in Toppenish to elicitreinforcements, returned to this location to look for these three victims, and in theprocess ofconfronting them for aphysical altercation one ofthem was shot. Andthenthey left. So thatwas the information I was trying to elicit from him. An interview, an interrogation, call it what you will, I was trying to elicit some form ofinformation from him. RP at 1175. Ray Betancourth again denied involvement in the crime. He portrayed confidence and occasionally flashed smirks. Detective Jaban Brownell showed Betancourth text messages from the latter's phone that police obtained from Verizon. Brownell played a three to four minute audio statement ofNancy Arriaga, Betancourth's girlfriend. Betancourth first denied that the voice on the recording was Arriaga's voice. As the 8No. 

### 32683-7-111 State v. Betancourth

audio played further, his body language changed and Betancourth said: "Guess you know what happened then." RP at 1179. Ray Betancourth asked to speakto an attorney, and the interview ended. Police arrested Betancourththe next day. The Toppenishpolice department later learned that, under a recent courtruling, the district court search warrant for Ray Betancourth's cell phone records was invalid. A superior court search warrant was required to subpoenarecords in another state. On October 9, 

### 2013, the Yakima County Superior Court granted, at Detective Jaban Brownell's request, a search warrant to obtain the same phone records procured from Verizon through the district court warrant. The warrantread in part: NOW, THEREFORE, you are hereby commanded in the name of the State ofWashington within ten (10) days ofthis date, to use such force as may be necessary [language obliteratedby clerk'spapernumber] business and to seize the above described evidence, and to safely keep the same as provided by law and to make a return ofthis warrantwithin three (3) days ofthe date thereof, showing all acts and things done hereunder

.... Clerk's Papers (CP) at 

### 70-71. On October 15, Brownell sent the warrant by fax to the custodian ofrecords in Verizon's legal compliance office in San Angelo, Texas, with a message that "THESE RECORDS WERE REQUESTED BYA DISTRICT COURT WARRANT PREVIOUSLY. BASED ON RECENT COURT RULING THEYNEED TO BE BASED ON A SUPERIOR COURT WARRANT." CP at 

### 76. Verizon neverproduced

9No. 32683-7-III State v. Betancourth

the records again. PROCEDURE The State ofWashington charged Ray Betancourthwith first degree assault and second degree felony murder for the assault and death ofJose Rodriguez. Ray Betancourth movedto suppress the cell phonerecords and his statements to the Toppenishpolice during the September 21 and October 9, 2012 interviews. During the hearing to suppress the police station statements, Detective Jaban Brownell andRay Betancourth testified. The trial court denied the motion to suppress. The courtreasoned that no reasonable personwould believe he was under arrest during either ofthetwo interviews. Regarding the October 9 interview, the court commented: Mr. Betancourth's recall ofthe events leading up to his conversation with officers on October 9 was relatively-sparse, didn'tremember much aboutthe circumstances; most ofthe detail he providedwas ofthe actual conversation. Although he-it does not appearthat he was told he was free to leave, at no point was he placed under arrest, he was neverhandcuffed, he was nevertold he couldn't leave

.

. . .There was nothing coercive aboutthe interviewwith the exception ofMr. Betancourth's statements regarding Sgt. Logan, but even in his testimony, that is, Mr. Betancourth's testimony, there was no suggestion that Sgt. Logan stood up or displayedhimselfin an aggressive manner. He did indicate he was nervous, or afraid ofhim, butthat wasbased on what I saw from Mr. Betancourth I would notplace significant credibility onthat statement.

·RP at 84-85. The trial court entered, in part, the following findings offact and conclusions of

10No. 32683-7-111 State v. Betancourth

law after the motion to suppress hearing: I. FINDINGS OF FACT 1.1 Duringthe investigation ofthe homicide which is the subject matter ofthis case, the Toppenish Police Departmenttwice contactedthe defendant and questioned him. The State now seeks to introduce evidence regarding the second ofthese two conversations. The first conversation tookplace on September 21, 2012. 1.2 On that date the defendant came to the Toppenish Police Department with his father. He had an approximately 20 to 30 minute conversation with officers at thattime. 1.3 He was eighteen years ofage. He wanted to have his father present for the conversation but his father was not allowed to be present. 1.4 The defendant was not under arrest and was free to leave at any time. He was never told he was under arrest. Nor was he handcuffed or told he was not free to leave. 1.6 On October 9, 2012 the defendant came to the Toppenish Police Department with his mother to talk about a truck which hadbeen seized civilly. The defendant was not under arrest andwas free to leave. He was nevertold he was under arrest, handcuffed, ortold he was not free to leave. 1.7 Toppenish Police Department Detectives Jaban Brownell and DamonDunsmore were present during this conversation, as was Sargent Paul Logan. The defendant testified that he got along fine withBrownell and Dunsmore, but claims that he was nervous and felt intimidatedby Logan. The court does not find this claim credible. As he testified the defendant presented as being very confident in a·potentially stressful situation. 1.9 The defendant did actually terminate the October 9, 2012 contact so that he could consult with his attorney. The officers did not impede or objectto his doing so. II. CONCLUSIONS OF LAW 2.1 Miranda warnings were notrequired during either ofSeptember 21, 2012 or October 9, 2012 conversations which the Toppenish officers

11No. 32683-7-111 State v. Betancourth

had with the defendant as no reasonable person in his position would believe that the[y] were under arrest on either occasion. CP at 104-06. The trial court later held a CrR 3.6 hearing on Ray Betancourth's motion to suppress his cell phone records because the district court warrant was not valid. The State responded, in part, to the motion by asserting that the independent source doctrine applied. The court heard testimony from Detective Jaban Brownell, Detective Damon Dunsmore, and Melissa Sandoval, custodian ofrecords for Verizon Wireless. Sandoval testified that Verizon still maintained the records ofBetancourth's phone as requested in the preservation letter. She testified that Verizon couldproduce the records again if requested to do so. During argument, the State asserted the decision State v. Miles, 159 Wn. App. 282, 244 P.3d 1030 (2011), as analogous. State v. Miles concerns the independent source doctrine. Betancourthresponded to the independent source doctrine argument. The trial court denied Betancourth's motion to suppress the text messages on the basis that the district court order was entitled to full faith and credit. The trial court did not expressly mention the independent source doctrine in its ruling but stated that producing the records again would be fruitless and any violation ofthe statute was technical in nature. The State ofWashington's prosecution ofRay Betancourthproceededto ajury trial. During trial, Betancourth raised the defense, to felony murder, available under

12No. 32683-7-111 State v. Betancourth

RCW 9A.32.050(1)(b). The defense applies ifBetancourth did not know Marco Cardenas was armed at the time ofthe chase ofJose Rodriguez. Duringthe State's case in chief, Detective Jaban Brownell testified to the two police interviews ofRay Betancourth. Brownell remarked that, during the September21 interview, Betancourth provided different information from his father as to the use ofthe Fordpickup on the date ofthe shooting. In response, Betancourth declared his father to be lying. He denied any involvement in the shooting. Concerningthe October 21 interview, Brownell testified to Betancourth's confidence until police playedthe audio recording ofhis girlfriend. Betancourth then changed his posture and remarked: "Guess you know what happened then." RP at 1179. The State also raised the station-house statements when cross-examining Ray Betancourth. Betancourth conceded he lied when he told the officers that he knew nothing about the shooting. Duringtrial, the State showed thejurytext messages from Betancourth'sphone records, including one message when Betancourthwrote: "'Yep. I

wannabeatthe shit ofboth ofthem.' Smiley face." RP at 1122. Ray Betancourth testified at trial that he did not know Marco Cardenas had a gun and, before the shooting, he returned to his truck to tum offthe motor. Theprosecution asked Ray Betancourth about the content oftext messages he sent before the confrontation. He admitted that he wrote that he wanted to "beattheir ass." RP at 1203. Laterthe prosecution asked Betancourth and he answered: 13 

# INo. 32683-7-111 State v. Betancourth Q All right. Okay. Butyou were going to beathis ass. Yes[.] A Well, that's how 

### I felt, likeRP at 1205. During closing argument, the State uttered the phrase, or a variation ofthephrase: "beatthe shit out of'thirty-eight times. The State also reviewed the police station interviews, Ray Betancourth's repeated denial ofany involvement in the shooting, and his subsequent implied admission. The State focused on Betancourth's text when discussing intent to commit substantial bodily harm. [Betancourth's] intent was to beat the shit out ofsomeone and when you beat the shit out ofthem they're likely to have black eyes-as an example. Or a function oftheir bodily parts might be impaired. Ifyou really get the shitbeaten out ofyou aren'tyou going to be kind ofall sore all over, have a hard time moving various parts ofyour body because that? [sic] Well, that would be substantial bodily harm. RP at 1447. Also during closing arguments, the State argued concerning Ray Betancourth's defense: Butthere's another thing here. And that is thatthere's a statutory defense. And when I say that, you know that you'vebeen told over and over-over again, the state has to prove the elements beyond a reasonable doubt. Andthe state has proved the elements beyond a reasonable doubt of felony murder. Butwhat the law says is that, you know, this felony murder, it does cast apretty broad net. Especially when you're talking about the conduct ofotherpeople. So there's an affirmative defense that he can bring, and if he can prove by apreponderance ofthe evidence, ifhe canprove, more likely than not, certain things-andwe're going to look at another list of things-he has to prove all these things by apreponderance ofthe evidence, and ifhe does that, even though I provedthe elements beyond a reasonable doubt then you would still have a duty to find him not guilty. 14No. 32683-7-III State v. Betancourth

So let's look at what the elements ofthat [defense] are. And I'm going to-He has to prove all four ofthese. I'm going to argue to you thathe really doesn'tprove any ofthem. Number one, he has to showhe did not committhe homicidal act. That's true. Buthe-alsohas to show thathe didn't solicit, request, importune-in otherwords provide the opportunity-or aid the commission ofthe homicidal act. Well, he provided-importune means provide the opportunity. He provided the opportunity for the homicidal act, didn't he? He brought Marcos to the scene where the shootingtookplace. Rode around withhim in a truck looking for Terrence and his friends. Wentback and got reinforcements, tookhimbackto the scene ofthe crimeMR. THERRIEN [Betancourth's counsel]: YourHonor, I think that's a misstatement ofthe law. I think-he'stalking about-he's referring to the second degree assault. MR. SOUKUP [State's counsel]: I'mreferring to this instruction right here, yourHonor. THE COURT: Objection's overruled. MR. SOUKUP: So he gave him the opportunity, and he-andhe aided it. It's-That's it right there. He can't showthat by a preponderance ofthe evidence thathe didn't do that. So you should deny it onthatbasis alone. RP at 1450-51. The trial court instructed thejury on second degree felony murder and first degree assault. The court also provided an instruction for a felony murder affirmative defense: It is a defense to a charge ofMurder in the SecondDegree based upon committingthe crime ofsecond degree assault thatthe defendant: (1) Did not committhe homicidal act orin any way solicit, request, command, [i]mportune, cause, or aid the commissionthereof; and (2) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable ofcausing death or serious physical injury; and (3) Hadno reasonable grounds to believe that any otherparticipant was armed with such a weapon, instrument, article, or substance; and (4) Had no reasonable groundto believe that any otherparticipant 15No. 32683-7-III State v. Betancourth

intended to engage in conduct likely to result in death or serious physical mJury. The defendant has the burden ofproving this defense by a preponderance ofthe evidence. Preponderance ofthe evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. Ifyou find that the defendant has established this defense, it will be your duty to return a verdict ofnot guilty as to this charge. CP at 170. Thejury found Ray Betancourth guilty ofsecond degree murder and first degree assault and imposed a firearm enhancement for each crime. The trial court sentenced Betancourth, who lacked a criminal history, to 336 months confinement and imposed the following financial obligations: RTN $5,700.77 PCV $500.00 FRC $200.00 PUB $600.00 DNA $100.00 JFR $250.00 $7,350.77 Restitution distributed to: Crime Victims Compensation, subject to modification Crime Penalty Assessment- felony or gross misd. (RCW 7.68.035) Criminal filing fee Court appointed attorney recoupment (RCW 9.94A.760) DNA collection fee (any felony committed after 7/1/02) (RCW 43.43.7541) Jury fee TOTAL CP at 193 (boldface omitted). The trial court also found Betancourth financially able to pay the costs ofincarceration and medical care costs incurred by Yakima County and ordered Betancourth to pay both. After Ray Betancourth's appeal, the trial court entered findings offact and

16

# I t No. 32683-7-111 State v. Betancourth

conclusions oflaw withregard to the order denying the motionto suppress the Verizon text messages. The findings and conclusions read, in part:

I. FINDINGS OF FACT 1. On September 25, 2012, a Yakima County District CourtJudge, DonaldEngle issued a warrant for Ray Betancourth'sphone records to Cellco Partnership, dba Verizon Wireless in NewJersey. 2. That warrant was faxed to (888) 667-0026. Cellco responded and provided records associated withphone number (509) 314-1688. 3. Verizon Wireless does business withinthe State ofWashington, butthe Verizon Wireless office which responds to search warrants is geographically located outside ofthe State ofWashington. 4. Subsequently, one ofthe Yakima County Superior CourtJudges ruled in another case thatthis procedure was problematic because a District CourtJudge does not have authority to issue out-of-State searchwarrants. 5. As a result, Deputy ProsecutingAttorney David Soukup, who was assigned to this case, contacted Toppenish Police Department Detective Brownell in October 2013 and requested thathe obtainthe same warrant from a Superior Court Judge. Mr. Soukup requested that he use exactlythe same information whichhe used in obtaining the search warrant from the District Court Judge. 6. Detective Brownell compliedwith Mr. Soukup's request. The only information he added to the affidavitpresentedto Superior Court Judge SusanHahn on October 9, 2013 was that there had been a search warrant granted onthe same information earlierby a District CourtJudge, and thathe hadbeen requestedby the Prosecutor's Office to reapply for the warrant to a Superior Court Judge. 7. In seeking the October 2013 warrantthe police used an affidavit for probable cause identical to the one used in September 2012. 8. Judge Hahn authorized the searchwarrant. Detective Brownell did not ask Verizon to sendthe records again. 9. On October 15, 2013, Detective Dunsmore faxed the new warrant to a different entity, "VerizonLegal Compliance" at a differentphone number

- (908) 306-7491. 10. The facsimile face page stated: "Theserecords were requested by a district court warrantpreviously. Based onrecent courtruling [sic] 17No. 32683-7-III State v. Betancourth they need to be based on a superior court warrant." No newrecords were everprovided under this warrant. 11. Shortly afterthe date ofthe crime Toppenish Police Department Detective Damien Dunsmore had sent a letter to Verizon Wireless requesting that any texts messages in their system at that time be "held" and not "purged." This letter is not a search warrant. Itis simply a request to maintain the records that exist in Verizon's care. 12. Verizon Wireless records custodianMelissa Sandoval testified that the text message documents originally provided by Verizonpursuantto the search warrant obtained from the District CourtJudge on September25, 2012 were still beingheld as ofthe trial in this matterpursuant to Detective Dunsmore'spreservation letter. Thus, said documents would have also been in Verizon Wireless's possession when Detective Brownell obtained the Superior Court search warrant on October 9, 2013. 13. Thepolice did not try to get a warrant in the state where the records were retained. 14. RCW 10.96.020(2) provides that: "Criminalprocess issued under this section must containthe following language in boldtype on the first page ofthe document: "This [ warrant, subpoena, order] is issued pursuant to RCW [insert citation to this statute]. A response is due within twenty business days ofreceipt, unless a shortertime is stated herein, orthe applicant consents to a recipient's request for additional time to comply." Neither warrant containedthis language. II. CONCLUSIONS OF LAW 1[.] The legislature has explicitly provided in RCW 10.96.060 that "[a]judge ofthe superior court may issue any criminal process to any recipient at any address, within orwithout the state, for any matter over which the court has criminaljurisdictionpursuantto RCW 9A.04.030." ([E]mphasis added). The crime in the present case is alleged to have been committed in Toppenish, Washington. Yakima County Superior Court has criminaljurisdiction over crimes committed in the State ofWashington. Therefore, a Washington State Superior Court Judge was authorized to issue a search warrant for items located outside ofthe State in this case. 2. Once the search warrant is signed it is entitledto full faith and credit throughout the United States. 3. There is nothing that was requested based on the invalid district court warrant that tainted the second warrant. Itwas really nothing more than a technical error that was corrected. 18No. 32683-7-III State v. Betancourth

4. The language from RCW 10.96.020(2) is mandatory. However, it is an instructional caution that goes to the recipient ofthe warrant and does not rise to the level ofa defendant thatwouldpreventthe instruction the evidence that was the subject ofthe warrant. CP at 215-18 (boldface omitted) (alterations in original). LAWAND ANALYSIS On appeal, Ray Betancourth contends the trial court erred by denying his motion to suppress as evidence his statements during police interviews, by denying his motion to suppress as evidence the cell phone text messages, by allowing the State to argue in closing that he did not prove his defense to felony murder because ofundisputed evidence that he drove Marco Cardenas to the scene ofthe shooting, by allowing the State during closing to repeatedly utter his text message ofwanting to "beatthe shit" out ofTerrence Frank, and by imposing the extent ofthe legal financial obligations. These many assignments oferrorraise subissues and prolong this opinion. We address first whether the trial court committed errorby permitting the State's comments, during closing argument, concerningthe defense to felony murder. Prosecution ClosingArgument on Importune Issue 1: Whether the trial court erredwhen failing to sustain RayBetancourth 's objection to comments of theprosecutor during the closingstatement thatRay Betancourth importunedthe death of Jose Rodriguez byproviding for the opportunity of the shooting?

19No. 32683-7-III State v. Betancourth

Answer 1: Yes. Ray Betancourthraised the statutory defense to felony murderunder RCW 9A.32.050. RCW 9A.32.050 creates the crime ofsecond degree murder and reads, in relevantpart: (1) A person is guilty ofmurder in the second degree when: (a) With intent to cause the death ofanother personbut without premeditation, he or she causes the death ofsuchperson orofa third person; or (b) He or she commits or attempts to commit any felony, including assault, otherthan those enumerated in RCW 9A.32.030(1)(c), and, in the course ofand in furtherance ofsuch crime or in immediate flight therefrom, he or she, or another participant, causes the death ofaperson otherthan one ofthe participants. RCW 9A.32.050(l)(b) denotes the crime offelony murder that occurs whenthe accused does not shoot the victim, but an accomplice, during the commission ofanother crime, shoots the victim. Ray Betancourth did not shootJose Rodriguez. A companion did. In aprosecution for felony murder when a coparticipant, not the accused, shoots the victim, the accused may raise a defense oflack ofknowledge ofthe coparticpant carrying a deadly weapon. The remainder ofRCW 9A.32.050 reads:

... except that in any prosecution under this subdivision ( 1 )(b) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance ofthe evidence, it is a defense that the defendant: (i) Did not committhe homicidal act or in any way solicit, request, command, importune, cause, or aid the commissionthereof; and (ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable ofcausing death or serious physical injury; and 20No. 32683-7-111 State v. Betancourth (iii) Had no reasonable grounds to believe that any otherparticipant was armed with such a weapon, instrument, article, or substance; and (iv) Had no reasonable grounds to believe that any otherparticipant intended to engage in conduct likely to result in death or seriousphysical lilJUry. We focus onRCW 9A.32.050(l)(b)(i), which subsection withdraws the defense if the accused solicited, requested, importuned, caused, or aided "the commissionthereof." "Thereof'refers backto the "homicidal act," not the underlying felony. During closing arguments, the State argued that Ray Betancourth needed to prove thathe did not "provide the opportunity" for the homicide. RP at 1451. The State declared: "Importune

means provide the opportunity." RP at 1451. "He [Betancourth] providedthe opportunity for the homicidal act, didn'the?" RP at 1451. "HebroughtMarcos to the

scene where the shooting tookplace." RP at 1451. "Sohe gave him the opportunity." RP at 1451. "Soyou should deny it [the defense] onthat basis alone." RP at 1451. Contrary to the State's closing argument, the accused does not forfeit the defense under RCW 9A.32.050 by providingthe gunmanthe opportunity to shoot. The word "opportunity" is not used in the statute. The State also erroneously declaredthat the word "importune" means give one an opportunity. The Washington criminal code does not define the word "importune." We may

use a dictionary to discern the plain meaning ofan undefined statutory term. Nissen v. Pierce County, 183 Wn.2d 863, 881, 357 P.3d 45 (2015). "Importune" means in a lay dictionary: 21No. 32683-7-111 State v. Betancourth


### 1. a: [T]o press or urge with frequent or unreasonable requests or troublesome persistence 2. b: To make immoral or lewd advances toward WEBSTER'S THIRDNEW INTERNATIONALDICTIONARY 1135 (1993). Thus, the State's summation conflicted with the law and with the court's instructiontothejury. The accused must take steps to cause the murderbeyond merely providing the opportunity for the killing. A prosecuting attorney commits misconductby misstatingthe law. State v. Allen, 182 Wn.2d 364, 373-74, 341 P.3d 268 (2015); State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008). Also, statements by the prosecution or defense to thejury on the law must be confinedto the law as set forth in the instructions given by the court. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984); State v. Estill, 80 Wn.2d 196, 199,492 P.2d 1037 (1972). Issue 2: WhetherRayBetancourth 's conviction for seconddegree murdershould be reversed because of the erroneous argument of theprosecution? Answer2: Yes. A case will be reversed for improper argument oflaw by counsel whenthe error is prejudicial to the accused. State v. Davenport, 100 Wn.2d 757, 762 (1984). In determining whether a trial was fair and whetherthe defendant sufferedprejudice, the court should look to the trial irregularity and determine whether it may have influenced thejury. State v. Davenport, 100 Wn.2d at 762. The prosecuting attorney misstating the 22No. 32683-7-III State v. Betancourth

law ofthe case to thejury is a serious irregularity having the grave potential to mislead thejury. State v. Davenport, 100 Wn.2d at 763. Misstating the law on a key issue in the

case is a factor showingprejudice. State v. Allen, 182 Wn.2d 364, 375 (2015). The trial court's overruling, in the presence ofthejury, ofthe defendant's objectionto the misstatement ofthe law is an important factor in weighingprejudice since the trial court's ruling lends an aura oflegitimacy to the improper argument. State v. Allen, 182 Wn.2d at 378. We hold the State's closing argumentwas prejudicial to Ray Betancourth. Betancourth testified to his lack ofknowledge ofMarco Cardenas possessing a gun. One ofthe State'sprime witnesses, David Chavez, also denied having knowledge ofCardenas bringing a gun to the chase. Othertestimony supported a finding that Betancourth should have reasonably concluded that Cardenas held a gun during the chase, butthejury could have rejected this testimony and found otherwise. Although there was some evidence that Betancourthpossessed a gun inside the pickup truck, Betancourth did not take his firearm on the chase. Ajury could infer from this evidence that Betancourth did not want

or expect anyone else to bring a gun to the chase. The State's misstatement ofthe law

was central to a key issue in the trial. The trial court impliedly approved the State's misinforming ofthejury when the trial court overruled Betancourth's objections to the closing argument.

23No. 32683-7-111 State v. Betancourth

We reverse the second degree murder conviction ofRay Betancourth onthe basis ofthe prosecution's misstatement ofthe law. Since a newtrial is likely onthe second degree murder charge, we should and do determine whetherthe trial court shouldhave granted Ray Betancourth's motionto suppress statements made during the two police station interviews. This issue is also important in determining whetherBetancourth's first degree assault charge should bereversed. Police Station Interviews Issue 3: Should the trial court have suppressedstatements utteredbyRay Betancourth topolice on September 21 or October 9, 2012? Answer 3: No. Ray Betancourth contends the trial court erred in admittinghis statements to police during the September 21 and October 9, 2012 interviews. He argues the statements are inadmissible because he made them during custodial interrogations withoutthe police affording himMiranda warnings. The State responds thatthe trial courtproperly admitted Betancourth's statements because he was not inpolice custody when the police interviewed him. Additionally, the State maintains that any error in admittingthe statements was harmless. We agree with the State that Betancourth was not in custody at the time ofthe interviews. The FifthAmendment to the United States Constitution provides that "[n]operson

... shall be compelled in any criminal case to be a witness againsthimself." U.S. Const. 24

# I ! 

# ' I 

# I No. 32683-7-111 State v. Betancourth

amend. V. Article 1, section 9 ofthe Washington State Constitution declares, in part: "Noperson shall be compelled in any criminal case to give evidence against himself

...." Article 1, section 9 is equivalentto the United States Constitution's Fifth Amendment and should receive the same interpretation. State v. Templeton, 148 Wn.2d 193, 207-08, 59 P.3d 632 (2002); State v. Foster, 91 Wn.2d 466,473, 589 P.2d 789 (1979). The right againsttestimonial compulsion is not limited to the courtroom. In Miranda v. Arizona, 384 U.S. 436,467, 86 S. Ct. 1602, 16 L. Ed. 2d 964 (1966), the United States Supreme Court adopted prophylactic measures designed to protect a suspect's FifthAmendmentright from the "inherently compelling pressures" ofcustodial interrogation. The Miranda Courtheld that a suspectinterrogated while inpolice custody mustbe told that he has a right to remain silent, that anything he says may be used against him in court, andthat he is entitledto the presence ofan attorney, eitherretained

or appointed, at the interrogation. Miranda v. Arizona, 384 U.S. at 444; Marylandv. Shatzer, 559 U.S. 98, 104, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). WithoutMiranda warnings, a suspect's statements during custodial interrogation are presumed involuntary and are thus inadmissible. State v. Heritage, 152 Wn.2d 210,214, 95 P.3d 345 (2004). The United States Supreme Court formulated Miranda warnings to protect a

. defendant's constitutional right notto make incriminating confessions or admissions to

police while in the coercive environment ofpolice custody. Miranda v. Arizona, 384 U.S. at 468-69 (1966); State v. Heritage, 152 Wn.2d at 214. Washington courts have 25No. 32683-7-111 State v. Betancourth

enunciated two rationales for recognizing a custodial situation requiringMiranda warnings: (1) to protectthe individual from the potentiality ofcompulsion or coercion inherent in in-custody interrogation, and (2) to protectthe individual from deceptive practices ofthe interrogation. Heinemann v. Whitman County, 105 Wn.2d 796, 806, 718 P.2d 789 (1986). Conversely, the requirement is not intended to unduly interfere with a proper system oflaw enforcement or to hamperthe traditional investigatory and public safety functions ofthe police. Miranda v. Arizona, 384 U.S. at 481. Law enforcement officers need not deliver theMiranda warnings whenever speaking with a citizen, let alone questioning a prime suspect ofa crime. For statements to be later admissible, Miranda warnings must precede the statements made during (1) custodial (2) interrogation (3) by an agent ofthe State. State v. Heritage, 152 Wn.2d at 214. The State concedes that its agents conductedthe questioning ofRay Betancourth. The State also presents no argument on whetherthe police questioning constituted interrogation. "Interrogation" can be express questioning or any words or actions reasonably likely to elicit an incriminating response. Rhode lslandv. Innis, 446 U.S. 291, 292, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); In re Pers. Restraintof Cross, 180 Wn.2d 664, 685, 327 P.3d 660 (2014). In both police station encounters, officers directly questioned Ray Betancourth about his involvement in a murder. Detective Jaban Brownell testified, at a suppression hearing, thathe soughtto elicit from Betancourth 26No. 32683-7-111 State v. Betancourth

information about the murder. We conclude that Toppenish law enforcement officers interrogated Betancourth. The issue becomes whether the trial court correctly ruled that Betancourth was not "in custody" during the station interviews. The United States Supreme Court declared, in Miranda v. Arizona, that "custodial interrogation" means "questioning initiated by law enforcement officers after a person has beentaken into custody or otherwise deprived ofhis freedom ofaction in any significant way." Miranda v. Arizona, 384 U.S. at 444 (1966). The police are required to giveMiranda warnings only when "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). The ultimate inquiry is simply whether there is a formal arrest or restraint on freedom ofmovement ofthe degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983); Oregon v. Mathiason, 429 U.S. at 495. The United States Supreme Court has given some guidance as to factors that, standing alone, do not merit a finding ofcustody. "[A] noncustodial situation is not converted to one in whichMiranda applies simply because a reviewing court concludes that, even in the absence ofany formal arrest orrestraint on freedom ofmovement, the questioning took place in a 'coercive environment.'" Oregon v. Mathiason, 429 U.S. at 495. Any interview ofone suspected ofa crime by apolice officer will have coercive aspects to it, simply by virtue ofthe fact that the police officer is part ofa law 27No. 32683-7-111 State v. Betancourth

enforcement system that may ultimately cause the suspectto be chargedwith a crime. Oregon v. Mathiason, 429 U.S. at 495. There is coercion and there is coercion. A small degree ofcoercion is permissible. A large degree ofcoercion is notpermissible. Lower courts must adjudge the dividing line between the two. SimilarlyMiranda warnings are notrequired "simplybecause the questioning takes place in the station house, orbecause the questioned person is one whomthe police suspect." Oregon v. Mathiason, 429 U.S. at 495. The high court has rejected the notion that the "in custody" requirement is satisfied merely because the police interviewed a person who was the "focus" ofa criminal investigation. Beckwith v. UnitedStates, 425 U.S. 341, 347, 96 S. Ct. 1612, 48 L. Ed. 2d 1(1976). A key aspect ofthe custodial setting as described in Miranda is the isolation ofthe suspect in a room that is dominated by law enforcement officials. State v. Pejsa, 75 Wn. App. 139, 147, 876 P.2d 963 (1994). Whether officers tol~ the suspecthe was free to leave is also a significant factor in the custody analysis. State v. D.R., 84 Wn. App. 832, 838, 930 P.2d 350 (1997). A court may consider age in the custody analysis so long as the suspect's age was known to the officer at the time ofpolice questioning orwould have been objectively apparent to a reasonable officer. J.D.B. v. North Carolina, 564 U.S. 261,274, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011). The test ofwhetherpolice engage in a custodial interrogation is an objective test. J.D.B. v. North Carolina, 564 U.S. at 270. We do not considerwhetherthe accused 28No. 32683-7-111 State v. Betancourth subjectively considered himselfrestrained or free to depart the presence oflaw enforcement or whetherthe officers consideredthe accused free to leave orunder implied arrest. Instead we consider whether the mythical reasonable person would consider himselfrestrained and hope thatjudges unaccustomed to being the target ofa law enforcement investigation can discern what a reasonable person wouldthink. A person is in custody, for purposes ofMiranda warnings, when "areasonable person in a suspect'sposition would have felt that his or her freedom was curtailed to the degree associated with a formal arrest." State v. Heritage, 152 Wn.2d at 218 (2004). It thus is irrelevant whetherthe police had probable cause to arrest the defendant, whether the defendant was a "focus" ofthe police investigation, whetherthe officer subjectively believed the suspect was orwas not in custody, or even whetherthe defendant was orwas notpsychologically intimidated. State v. D.R., 84 Wn. App. at 836 (1997). The critical inquiry is not the psychological state ofthe defendant but whether his freedom of movement is restricted. State v. Sargent, 111 Wn.2d 641, 649, 762 P.2d 1127 (1988). The circumstances ofeach case must influence a determination ofwhether a suspect is "in custody" for purposes ofreceiving ofMiranda protection. California v. Beheler, 463 U.S. at 1125 (1983). Ray Betancourth argues that both encounters in the Toppenish detectives' trailer satisfied the custodial prong oftheMiranda analysis because a reasonable person of similar age would not have felt free to leave. The State argues the trial court decided 29No. 32683-7-III State v. Betancourth correctly because Betancourth was never told that he could not leave, the officers never threatened him, and Betancourthvoluntarily wentto the police station and talked to the police. We considerthe elements emphasized by the State to be critical and agree with the State'sposition. The facts ofsome United States Supreme Court and Washington appellate court decisions assist us. In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court held that the defendant was not in custody when questioned about his involvementby a detective at an office in the statepatrol station. The suspect willingly wentto the station to discuss the burglary, metthe officer in the hallway, shookhands, and went into an office. The officertold the suspect he was not under arrest. The two sat across a desk with the door closed whenthe officer began questioning the suspect about his involvement in the burglary. Within five minutes ofentering the office, the suspect confessed and then received his Miranda warnings. The Supreme Court found he was not subject to custodial interrogation because "there is no indication thatthe questioning tookplace in a context where respondent's freedom to depart was restricted in any way." Oregon v. Mathiason, 429 U.S. at 495. In California v. Beheler, 463 U.S. 1121 (1983), Jerry Beheler admittedhis involvement in a fatal shooting. He was at the police station whenhe made the incriminating statements. Although he was not given his Miranda warnings, the police told Behelerthat he was not under arrest. The Supreme Courtreversed the California 30No. 32683-7-111 State v. Betancourth

Court ofAppeals, holding thatMiranda warnings were not required. In State v. Furman, 122 Wn.2d 440, 858 P.2d 1092 (1993), law enforcementtook Michael Furman's confession to murder withoutreading himMiranda warnings. Furman

was seventeen years old at the time. The Supreme Court refused to suppress the confession because Furman was free to leave during the confession. In State v. Grogan, 147 Wn. App. 511,195 P.3d 1017 (2008), review granted, 168 Wn.2d 1039, 234 P.3d 169 (2010), Clifford Grogan voluntarily wentto the Spokane Public Safety Building to talk to officers about a murder investigation. He was not placed under formal arrest. He was told that he could leave at any time and he acknowledged that he was told he could leave at any time. The interviewing detectives did not giveMiranda warnings. This court affirmed the trial court's refusal to suppress the statements given during the interview. Ray Betancourth suggests his case is similarto State v. Daniels, 160 Wn.2d 256, 156 P.3d 905 (2007). InDaniels, the police suspected the defendant committed homicide by abuse for the death ofher nine-week-old son. The day after her son's funeral, two police detectives questioned seventeen-year-old Carissa Daniels for over 90 minutes in an 8 foot by 10 foot room at the precinct. The detectives refused to allow her father to accompany her. They did not give her any Miranda warnings until near the end ofthe interrogation, she refused to answer any more questions soon after receiving the warnings, and then they placed her in a holding cell. Our Supreme Court found the 31

### No. 32683-7-111 State v. Betancourth

detectives subjected Daniels to a custodial interrogation and affirmed suppression ofher statements. Unfortunately, the decision provides little insight into what factors are important or controlling when determining the status ofcustody. We deem other decisions more analogous than State v. Daniels. InDaniels, the record shows no comments to the accused that she was notunder arrest orthat she could leave at any time. The interrogation took place the day afterthe son's funeral, while Carissa Daniels suffered stress. Ray Betancourth suffered no similar stress. Daniels was seventeen years old, while Betancourth was eighteen years ofage. Although the difference in age is only one year, society considers an eighteen-year-old to bethe age of majority and capable ofliving on one's own. Although both interviewing rooms were small, the Toppenishtrailerwas double the size ofthe precinctroom inDaniels. Betancourth understood he was free to leave, and he left on his own volition bothtimes. Ray Betancourth emphasizes his age. Ray Betancourth was eighteen at the time of the killing and the police station questioning. InJ.D.B. v. North Carolina, 564 U.S. at 

### 272, the United States Supreme Courtheld that the age ofa child subjectedto police questioning is relevant to the custody analysis ofMiranda v. Arizona. The court reasoned that children will often feel boundto submitto police questioning when an adult in the

same circumstances would feel free to leave. The Supreme Court did not announce, however, the dividing line between an adult and a child. Thepetitioner, J.D.B., was thirteen years old when he was removed from his classroom by a uniformedpolice 

### 32No. 32683-7-III State v. Betancourth officer, escorted to a closed-door conference room, and questioned by two police officers with two school administrators present and encouraging himto speak. Even then, the Supreme Court did not suppress the confession, but remanded the case for the lower court to consider age as one factor in the determination ofwhetherJ.D.B. was in custody. Toppenish police officers' denial ofentry ofRay Betancourth's parents into the investigations officeplays in favor ofBetancourth. Nevertheless, we do not find this factor controlling. TheDaniels court consideredthis factor, but did notrule it controlling. We find no case in which a court holds that the barring ofaparent from the interview should require police to give a childMiranda warnings. Although not directly

onpoint, the following decisions hold that a child's statementwithout aparentpresent constituted a voluntary statement. State v. Moore, 2015 WI 54, 363 Wis. 2d 376, 864 N.W.2d 827 (2015); People v. Edwards, 2015 IL App (3d) 130190, 32 N.E.3d 116, 392 Ill. Dec 116, leave to appealfiled, No. 119332 (Ill. 2015); State v. Moses, 390 S.C. 502, 702 S.E.2d 395 (Ct. App. 2010); Smith v. State, 276 Ga. 97, 575 S.E.2d 450 (2003). The record does not showthat law enforcementtold Ray Betancourth, during the October 9 interview, thathe was free to leave. Nevertheless, Detective OfficerJaban Brownell told Betancourth such during the September 21 questioning and there was little difference between the two interviews. The September 21 and October 9 interviews shared location, participants, and duration. No officertold Betancourthhe was under arrest during the second interview. Betancourth left when he wanted. 33No. 32683-7-III State v. Betancourth Ray Betancourth assigns error to many ofthe trial court's findings offact, but most ofalleged errors concern findings addressing whether Betancourth was in custody during the law enforcement interviews. Two discrete inquiries are essential to the determination ofcustody: first, what were the circumstances surroundingthe interrogation; and second, given those circumstances, would a reasonableperson have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995). Once the trial court reconstructs the play and determines the stageprops, the actors' positions and movements on stage, and the elocution and dialogue ofthe actors, the reviewing court applies an objective test to resolve the ultimate inquiry ofwhetherthere was a formal arrest or restraint on freedom ofmovement ofthe degree associated with a formal arrest. Regardless ofwhether the status ofbeing in custody is referred to as a finding offact or a conclusion oflaw, we review the determination de novo because ofits legal significance. Thompson v. Keohane, 516 U.S. at 121; State v. Daniels, 160 Wn.2d at 261 (2007). Still,

we agree with the trial court's determination ofthe lack ofcustody. Ray Betancourth assigns error to finding offact 1.7, which reads:

...The defendant testified that he got along fine with [Detectives] Brownell and Dunsmore, but claims thathe was nervous and felt intimidated by [Sergeant] Logan. The court does not find this claim credible. As he testified the defendant presented as being very confident in a potentially stressful situation.

34No. 32683-7-111 State v. Betancourth

CP at 105. This finding is one ofpure fact unencumbered by legal consequences. Ifthe accused challenges findings offact, they are verities ifsupported by substantial evidence in the record. State v. Broadaway, 133 Wn.2d 118, 131, 942 P.2d 363 (1997). Substantial evidence is evidence sufficientto persuade a fair-minded, rational person of the truth ofthe finding. State v. Cherry, 191 Wn. App. 456,464,362 P.3d 313 (2015). Substantial evidence supports the trial court's finding offact 17. Verizon TextMessages We now address Ray Betancourth's remaining contentions to determine whether he is entitled to relieffrom his conviction for first degree assault. Betancourth contends that the trial court erred by admitting as evidence cell phone records from Verizon in the form oftext messages because the police obtainedthe records without a valid search warrant and that this errorrequires reversal. He argues that the Yakima County District Courtwarrant was notvalid. He also contends that the superior court warrantwas defective because it did not include language requiring a response within twenty days. He further observes that Verizonproduced no text messages in response to the superior court warrant. Alternatively, he challenges the constitutional validity ofthe warrant statute, RCW 10.96.060. The State responds that the records are admissible through the superior court warrant, under the independent source doctrine. Any failure to retrieve another copy of the text messages after service ofthe superior court warrant was a technicality that does 35No. 32683-7-III State v. Betancourth

not preclude use ofthe messages as evidence. The State also maintains that RCW 10.96.060 is constitutional. In tum, Ray Betancourth contends the State may notraise the independent source doctrine on appeal because the trial court did not rely on the doctrine. The State also argues that, assuming the trial court should have excludedthe cell phone records, their use as evidence at trial is harmless error. Issue 4: Whether the Verizon text messages shouldhave been suppressedbecause the superior courtsearch warrant lacked language that the recipient neededto respond within twenty days? Answer4: No. The lack of statutory language is a ministerialerror thatdoes not invalidate the warrant. On September 25, 2012, the Yakima County District Court issued a search warrant ordering Verizon Wireless to provide Ray Betancourth's cell phone records from September 19 to September 25, 2012. Detective Damon Dunsmore faxed the warrantto Verizon's custodian ofrecords in New Jersey, and Verizon sentthe phone records to Dunsmore. The State concedes that the district court warrant was invalid since RCW 10.96.060 demands a search warrant served outside Washington State be issued by a superior court. RCW 10.96.060provides in part: Ajudge ofthe superior court may issue any criminal process to any recipient at any address, within or without the state, for any matter over which the courthas criminaljurisdictionpursuantto RCW 9A.04.030. A search warrant is a criminal process. RCW 10.96.010(3). One absolutely 36No. 32683-7-111 State v. Betancourth

necessary component ofa valid warrant is that it be issued by a magistrate with the legal authority to issue it. City of Seattle v. McCready, 123 Wn.2d 260,272, 868 P.2d 134 (1994). The State argues thatthe issuance ofthe superior court searchwarrant on October 9, 2013, suffices to authorize use ofthe text messages at trial. Law enforcement sentthe superior courtwarrant also to Verizon. We thus address the effect ofthe search warrant's failure to contain language declaring that a response to the warrant is due within twenty days. RCW 10.96.020 reads: Production ofrecords. This section shall apply to any criminal process allowing for search ofor commandingproduction ofrecords that are in the actual or constructive possession ofa recipient who receives service outside Washington, regardless ofwhetherthe recipient orthe records are physically located within the state. (1) Whenproperly servedwith criminal process issued underthis section, the recipient shall provide the applicant all records soughtpursuant to the criminal process. The records shall beproducedwithintwenty business days ofreceipt ofthe criminal process, unless the processrequires earlierproduction. An applicant may consentto a recipient's request for additional time to comply with the criminal process. (2) Criminalprocess issuedunder this section mustcontain the following language in boldtype on thefirstpage of the document: "This [warrant, subpoena, order] is issuedpursuant to RCW[insert citation to this statute]. A response is due within twenty business days of receipt, unless a shorter time is statedherein, or the applicant consents to a recipient's request for additional time to comply. "

37No. 32683-7-111 State v. Betancourth (Emphasis added.) The superior court search warrant directed to Verizon did not contain the language demanded under RCW 10.96.020(2). We already addressed Ray Betancourth's assignment oferror concerning the missing language in a search warrant in State v. Blizzard, 195 Wn. App. 717, 730, 381 P.3d 1241 (2016). The Blizzardsearch warrant also lacked the same statutorily mandated language. We refused to suppress evidence obtained underthe warrant. We observed that, absent constitutional considerations, the rules for execution and return ofa warrant

are essentially ministerial in nature. State v. Blizzard, 195 Wn. App. at 730; State v. Kern, 81 Wn. App. 308, 311, 914 P.2d 114 (1996). In general, procedural noncompliance with the rules does not invalidate a warrant or otherwise require suppression ofevidence absent a showing ofprejudice to the defendant. State v. Parker, 28 Wn. App. 425, 426-27, 626 P.2d 508 (1981). Ray Betancourth shows no prejudice by the missing language in the search warrant ofVerizon records. Verizonprofferedthe text messages withintwenty days of the warrant being faxed to it. 

### It actually produced the records before the service ofthe warrant. Theparties wouldhave acted no differently had the language been contained within the search warrant. The purpose ofrequiring the language in the search warrant is to warn the recipient ofthe warrant ofthe deadline for a response. The purpose ofthe language is not to protectthe rights ofthe accused.

38No. 32683-7-111 State v. Betancourth Ray Betancourth may contendthat, because the district court search warrantwas invalid, the superior courtwarrant was also invalid. Betancourth may ormay not be arguing that the invalid warrant somehow assisted law enforcement in obtainingthe superior court warrant suchthatthe search warrant is tantamountto fruit ofthe poisonous tree. Betancourth supplies no legal authority for this narrow argument. Law enforcement did not gain any information from the records supplied in response to the first warrant that led it to seekthe superior court warrant. The purpose ofthe superior courtwarrant

was to correctthe invalidity ofthe district courtwarrant. Evenwithout information gathered from Verizon in response to the district courtwarrant, probable cause supported issuance ofthe superior court warrant. Issue 5: WhetherRCW10.96.060'sprovision allowing the subpoena of records in

a

foreign state conflicts with other Washington statutes andtherefore is invalid? Answer 5: No. In orderto defeatthe superior courtwarrant, Ray Betancourthnext contends that RCW 10.96.060 conflicts withtwo statutes, RCW 2.08.190 and 2.08.210. We disagree. RCW 2.08.190 declares: Powers ofjudge in counties ofhis or her district. Anyjudge ofthe superior court ofthe state ofWashington shall have power, in any county within his orher district: (1) To sign all necessary orders and papers inprobate matters pending in any other county inhis or her district; (2) to issue restraining orders, and to signthe necessary orders ofcontinuance in actions orproceedings pending in any other county in his orher district; (3) to decide and rule upon all motions, demurrers, issues of 39No. 32683-7-III State v. Betancourth fact, or othermatters that may have been submittedto him orher in any other county. All such rulings and decisions shall be in writing and shall be filed immediately with the clerk ofthe proper county: PROVIDED, That nothing herein contained shall authorize thejudgeto hear any matter outside ofthe county wherein the cause orproceeding is pending, exceptby consent ofthe parties. This statute addresses the situation where onejudge sits in a bi-countyjudicial district. Thejudge may sign orders and entertain motions, whilephysicallypresent in one county, that impact parties and cases in another county. The statute imposes no restriction on a superior courtjudge for issuing subpoenas in cases pending in his countythat seek records stored in another county or state. RCW 2.08.210 reads: 

### Extent ofcourt's process-Venue. The process ofthe superior courts shall extendto all parts ofthe state.... The statute extends a superior courtjudge's authority for process throughout the state, but the statute does not limit the authority at the state's border. More importantly, Ray Betancourth presents no argument as to how, assuming RCW 2.08.210 impliedly constricts the superior court's authority, any conflict between RCW 10.96.060 and RCW 2.08.210 should be resolved. To repeat, the former statute reads: Ajudge ofthe superior courtmay issue any criminal process to any recipient at any address, within or without the state, for any matter over which the courthas criminaljurisdictionpursuantto RCW 9A.04.030

....

40No. 32683-7-III State v. Betancourth

RCW 10.96.060 expressly gives authority to issue process outside the state of Washington. To the extenttwo laws conflict, we give precedence to the more specific law, which here is RCW 10.96.060. Residents Opposedto Kittitas Turbines v. State EnergyFacility Site Evaluation Council, 165 Wn.2d 275,309, 197 P.3d 1153 (2008). Issue 6: Whether this reviewingcourtshouldaddress the State's contention that the independentsource doctrinepermits introduction of the Verizon textmessages? Answer 6: Yes. The State seeks to defend use ofthe Verizon text messages, despite the failure to produce the records a secondtime pursuantto the superior court warrant, on the basis of the independent source doctrine. Before we address the merits ofthe argument, Ray Betancourth seeks to preclude employment ofthe argument on appeal on the basis that the trial court did not rest its decision on the independent source doctrine or enter findings affirming that the doctrine applied. We are not sure whetherthe trial court rested its ruling, in part, on the independent

source doctrine. The courtruled that the search warrant was entitledto full faith and credit throughout the nation, despite signedby a district courtjudge. The State does not assert a full faith and credit argument on appeal. The trial court also ruled, however, that the later superior court warrant corrected a technical error and that the invalid district court warrant did nottaint the superior court warrant. This language suggests thatthe trial court may have based its ruling, in part, onthe independent source doctrine. 41No. 32683-7-III State v. Betancourth Regardless ofwhether the trial court grounded its decision in part in the independent source doctrine, the State may still employ the doctrine, and we may rely on the doctrine on appeal. The State raised the argument below. An appellate court may affirm atrial court's decision on any theory supported by the record and the law even if the trial court did notrely onthe theory. State v. Glenn, 140 Wn. App. 627, 636, 166 P.3d 1235 (2007); State v. Bradley, 105 Wn. App. 30, 38, 18 P.3d 602, 27 P.3d 613 (2001). We discern no rule thatrequires the trial court to have entered findings supporting the application ofthe doctrine, in order for us to review the doctrine's application, as long as the application is consistent with other findings and supported by the evidence. Issue 7: Whether the independentsource doctrinepermitted introduction of the Verizon text messages as evidence? Answer 7: No. Nevertheless, a corollary of the independentsource doctrine allowedintroduction of the text messages. Evidence seizedthrough an invalidsearch warrant neednot be returnedandreseizedonce the State garners a later validsearch warrantas longas the invalidwarrant does not taint the validwarrant. The State seeks tojustifythe admission ofthe Verizon cell phone text messages

on the basis ofthe independent source doctrine. Washington State and United States courts have long recognized the independent source exception. Murray v. UnitedStates, 487 U.S. 533, 537, 108 S. Ct. 2529, 101 L. Ed. 2d472 (1988); State v. Gaines, 154 42No. 32683-7-111 State v. Betancourth

Wn.2d 711, 717, 116 P.3d 993 (2005). The doctrine presents an exception to the rule that evidence obtained in violation ofthe privacy protections ofthe FourthAmendment or article I, section 7 ofthe state constitution must be excluded. State v. Ruem, 179 Wn.2d 195, 208-09, 313 P.3d 1156 (2013). Underthe independent source exception, evidence tainted byunlawful governmental action is not subject to suppression underthe exclusionary rule, provided that law enforcement ultimately obtained the evidencepursuantto a valid warrant or other lawful means independent ofthe unlawful action. State v. Gaines, 154 Wn.2d at 718. Washington courts considerthe independent source doctrine to be based on logic. State v. Gaines, 154 Wn.2d at 718. According to the plain text ofarticle I, section 7, a search or seizure is improper only ifit is executedwithout "authority oflaw." But a lawfully issued search warrantprovides such authority. State v. Ladson, 138 Wn.2d 343, 350, 979 P.2d 833 (1999). We conclude the independent source doctrine, under its statedterms, does not apply in this appeal. The doctrine assumes thatthe State eventually procures the evidence pursuantto a valid warrantuntainted by evidence unlawfully acquired. Toppenish law enforcement officers never obtainedthe text messages pursuantto a valid warrant. The messages arrived only in response to an invalid warrant. The State still argues that the independent source doctrine applies based on a federal ruling, UnitedStates v. Herrold, 962 F.2d 1131 (3d Cir. 1992). We agree to apply 43No. 32683-7-111 State v. Betancourth

Herroldbut we read Herroldas adopting a corollary to the independent source doctrine, which corollary we christen the invalidity correction corollary. In UnitedStates v. Herrold, law enforcement used an informantto purchase cocaine from Gene Herrold. Officers monitored the purchase. Becausethe officers observed Herroldretrieve the cocaine from his home, the officers garneredprobable

cause to obtain a search warrant for Herrold's residence. Nevertheless, the informant told officers that Herrold would soon leave his house for the purpose ofselling cocaine elsewhere, and officers worried that Herrold would leave with or destroy all ofthe evidence before they could secure a warrant. Trooper Hill knocked on the door of Herrold's residence. Herrold answered the door, and, when Hill told Herrold that he was under arrest, Herrold attempted to shut the front door. Hill forced his entry into the home, and other officers followed. Hill arrested Herrold. Hill and others noticed cocaine, drug paraphernalia, and a pistol inside. While TrooperHill swore an affidavit and collected a search warrant for the home, other officers stood guard inside the home. The search warrant allowed the seizure ofall drugs and firearms on the premises. Once law enforcement garnered the warrant, officers searchedthe home and seized drugs and paraphernalia, some ofwhich officers previously spotted on first enteringthe home. The facts from the trial court do not disclose whetherthe officers seizedthe pistol before the procurement ofthe search warrant, but the reviewing court assumed that officers grabbed and held the pistol for security reasons. The government charged Gene Herrold, a 

### 44No. 32683-7-III State v. Betancourth previous felon, with unlawful possession ofa firearm and using a firearm during a drug trafficking offense. In UnitedStates v. Herrold, the trial court suppressed the gun, all cocaine, and all drug paraphernalia onthe basis that the warrantless entry ofGene Herrold's home violated the Fourth Amendment. According to the trial court, this violationtaintedthe later searchpursuantto the search warrant. In UnitedStates v. Herrold, the Circuit Court ofAppeals reversed the trial court's suppression ofevidence. The appellate court noted that law enforcement officers did not seize the cocaine ordrug paraphernalia until afterprocuring the searchwarrant and that officers had probable cause to search the house without knowledge gainedbyunlawfully enteringthe premises. Therefore, the independent source doctrine applied and saved the evidence for use attrial. The Circuit Court ofAppeals, in UnitedStates v. Herrold, isolatedthe pistol for discrete analysis as to its admissibility as evidence. Again, the court assumedthatthe officers seized the firearm on initial entry into the home, did notreturn thepistol to Gene Herrold's possession while seeking a search warrant, and then reseize it on obtainingthe warrant. The court wrote: We recognize, ofcourse, thatthis casepresents a special question with regard to the gunbecause the police actually seized it during the unlawful entry and not during the warranted search. Nevertheless, we see no reason notto treat the gun as also being seizedpursuantto the search warrant which specifically authorizedthe seizure of"firearms ofany type." 45No. 32683-7-III State v. Betancourth

The Supreme Court in Murray rejected the argumentthat objects "once seized cannotbe cleanly reseized without returning the objects to private control," 487 U.S. at 541-42, 108 S. Ct. at 2535 (quoting UnitedStates v. Silvestri, 787 F.2d [736, 739 (1st Cir. 1986)]), and stated thatunder the independent source doctrine "reseizure oftangible evidence already seized" is permissible "[s]o long as the later, lawful seizure is genuinely independent ofan earliertainted one." Id. 

### It wouldbe dangerous to require officers to leave a fully-loaded, semi-automatic weapon unsecured until they obtained a warrant, and senseless to require the formality ofphysically re-seizing the gun already seized during the initial entry. Thus, the only logical implication underMurray is that the gun is as admissible underthe independent source doctrine as the other, non-dangerous evidence, seen during the initial entry but not seized until the warrant-authorized search. UnitedStates v. Herrold, 962 F.2d at 1143 (3d Cir. 1992). Our case on appeal has factors distinguishing it from UnitedStates v. Herrold. The initial seizure ofthe text messages was notpursuantto a warrantless entry ofa home and not in violation ofthe state or federal constitution. Instead, the gathering ofthe text messages violated a state statute, a distinction lending itselfto denying Ray Betancourth's motion to suppress the evidence. The initial seizure was not for the purpose ofofficer safety orto preserve evidence, a distinction lending itselfto granting Betancourth's motion. Nevertheless, as in Herrold, it would be senseless to demand that Toppenish law enforcementrequire Verizon to send another copy ofthe text messages already forwarded once by Verizon. Therefore, we hold that the trial court did not err when refusing to suppress the text messages. We recognize that the Washington Supreme Court has not addressed the invalidity correction corollary. We conclude, however, that our state Supreme Court would adopt 46No. 32683-7-III State v. Betancourth

this corollary because ofthe illogic ofrequiring evidence tobeproduced a second time

once law enforcementprocures a valid warrant and the first warrant did not contaminate the latter warrant. Remember that Ray Betancourthprotests that the trial court did not deny his motion to suppress on the basis ofthe independent source doctrine. We note thatthe trial court's ruling, however, is grounded on the same reasoning we employ. Requiring a secondproduction ofthe text messages is overly technical. Issue 8: Whether RCW10.96.020 violates the dueprocess clause? Answer 8: No. Pursuantto teaching, we have so far avoided the constitutional question surrounding RCW 10.96.020 raised by Ray Betancourth and instead soughtto resolve the appeal concerningthe search warrant for text messages on other grounds. Isla Verde InternationalHoldings, Inc. v. City of Camas, 146 Wn.2d 740, 752, 49 P.3d 867 (2002). Because we find no other basis on which to reverse the trial court's denial ofthe motion to suppress the messages, we now face the constitutional issue. Ray Betancourth notes that Toppenish officers sentthe search warrant for the cellphone text messages first to a Verizon office in NewJersey and laterto a Verizon office in Texas. Betancourth submits that there is no constitutional authority for one state court to subject citizens ofanother state to its laws on search and seizure. He questions the ability ofa statute to authorize a superior court in Washington to issue search 47No. 32683-7-111 State v. Betancourth

warrants for execution in other states. In essence, Betancourthrequests that we declare RCW 10.96.020 unconstitutional. Ray Betancourthrelies on State v. Jacob, 185 Ohio App. 3d408, 2009-0hio-7048, 924 N.E.2d 410. Inthat case, the State ofOhio charged Kevin Jacob, a resident of California, with theft from an elderlyperson when Jacob agreed to sell figurines for the victim on the Internet. Police in Ohio obtained a search warrant from the local court to search a residence in California. A member ofthe San Francisco Police Department executed the warrant, and the search led to the discovery ofevidence that connected Jacob to the offense in Ohio. Later, police obtained another search warrant for electronic devices that had been seized at Jacob's home and transferred to (?hio. Jacob challenged the validity ofthe California search on the ground that the warrant was unlawfully executed in California. The Ohio Court ofAppeals concludedthat the search warrant violated Jacob's Fourth Amendmentrights. Jacob holds that one state court should not subject citizens ofanother state to its laws on search and seizure. Jacob may be distinguished from our case on appeal because the Jacob search warrant authorized the search ofa residence in another state. The Yakima County search warrant sought copies oftext messages that were sent entirely within the state of Washington and by a cellphone still located in Washington State. Toppenish officers sent the warrant to New Jersey because the cell phone company's custodian ofrecords officed in the Garden State not for the purpose ofseizing evidence with no situs in Washington. 48No. 32683-7-111 State v. Betancourth

We generally do not rely on unpublished opinions from other states, but, because ofa dearth ofrelevant law and because Ray Betancourthrelies on a recent Ohio decision,

we decide to discuss a Michigan unpublished opinion that distinguishes itselffrom State

v. Jacob. People v. Wilson, No. 300274 (Mich. Ct. App. May 30, 2013), http://publicdocs.courts.mi.gov/opinions/final/coa/20130530_c300274_68_300274.opn. pdf. We note that Mich. Ct. R 7.215(C)(l) allows citation ofunpublished Michigan opinions, in Michigan courts, ifthe citingparty explains the reason for citing it and how the decision relates to the issues presented. In People v. Wilson, Sokol Gojcaj argued that his attorney was ineffective for not moving to suppress telephone records obtainedpursuant to two Michigan search warrants served on Gojcaj's cell phone carrier at the carrier's Texas office. Gojcaj contendedthat the telephone records should have been suppressed because the magistrate who issued the two search warrants lackedjurisdictionto issue warrants pertaining to an out-of-state party. The reviewing court disagreed because the evidence obtained from the carrier in Texas involved only records ofelectronic communications that occurred in Michigan, not Texas. Even though the warrants were served on a party at its office outside the state, they solely concerned transactions that occurred within this state. A statute is presumedto be constitutional, and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt. State

v. Myles, 127 Wn.2d 807, 812, 903 P.2d 979 (1995);AetnaLifeInsurance Co. v. 49No. 32683-7-III State v. Betancourth Washington Life andDisabilityInsurance GuarantyAssociation, 83 Wn.2d 523, 528, 520 P.2d 162 (1974). We do not considerRCW 10.96.020 unconstitutional beyond a reasonable doubt. We accept the reasoning behindPeople v. Wilson and hold that the Yakima County Superior Court had authority to subpoena cellphone records from a phone located in Washington State even though the office ofthe custodian ofthe records rested in New Jersey. State's Closing Argument-Repeat ofTextMessages Issue 9: Whether this reviewing courtshouldentertain RayBetancourth 's contention that theprosecutor committedmisconduct by repeatedly reminding thejury thatBetancourth statedhe wantedto "beat the shit" outof others, when Betancourth 's counseldidnotobject to theprosecutor's comments during trial? Answer9: Yes, butBetancourth carries a higher burden to show misconduct because of thefailure of his trial counsel to object. The prosecution uttered the phrase, or a variation ofthe phrase, "beatthe shit out of'thirty-eight times during closing arguments. The prosecution lifted the phrase from Ray Betancourth's text messages and Betancourth's remarks to friends David Chavez and Mario Cervantes. Betancourth argues that the prosecution repeated the phrase in order to inflame the passions and prejudice ofthejury. Nevertheless, Betancourth never objected at trial to the State's repeated use ofthe phrase. The State responds that Betancourth

50No. 32683-7-III State v. Betancourth

waived the issue ofprosecutorial misconduct because he did not object during the closing arguments. Washington courts repeatedly declare that the failure to objectto an improper remark constitutes a waiver oferror unless the remark is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralizedby

an admonition to thejury. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011); State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994); State v. Hoffman, 116 Wn.2d 51, 93,804 P.2d 577 (1991). This rule assumes that the accused may assign error to the prosecution's closing remarks for the first time on appeal. Issue 10: Whether theprosecution's repeatedreading of textmessages during closingargument requires reversal of thefirst degree assault conviction? Answer 10: No. When improper argument is charged, the defense bears the burden ofestablishing the impropriety ofthe prosecuting attorney's comments as well as theirprejudicial effect. State v. Hoffman, 116 Wn.2d at 93. Reversal is not required ifthe error could have been obviated by a curative instruction that the defense did not request. State v. Hoffman, 116 Wn.2d at 93. The failure to object to aprosecuting attorney's improperremark constitutes a waiver ofsuch error unless the remark is deemed to be so flagrant and illintentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to thejury. State v. Hoffman, 116 Wn.2d at 93. 51No. 32683-7-III State v. Betancourth
Iftrial counsel had objected early to the repeated uttering ofRay Betancourth's threats, the trial court could have ordered the State to refrain from repeating the phrase. Regardless ofwhether the remarks were flagrant or ill-intentioned, a timely objection could have prevented any prejudice ifgranted. Issue 11: Whether defense counselwas ineffective for failure to object to the prosecutor's improper remarks in closing arguments? Answer 11: No. Ray Betancourth contends his trial counsel was ineffective because he failed to object to the prosecutor's improper statements during closing arguments. The State responds that Betancourth'strial counsel did not perform deficiently because the trial court would have properly denied any objection to the prosecutor's closing arguments. We hold that Betancourth'strial counsel did not perform deficiently. Toprevail on an ineffective assistance claim, a defendant must show his attorney

was not functioning as guaranteed by the SixthAmendment. Stricklandv. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thiefault, 160 Wn.2d 409,414, 158 P.3d 580 (2007). A claim ofineffective assistance ofcounsel requires a showing that (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defendant. State v. Thomas, 109 Wn.2d 222,225, 743 P.2d 816 (1987). Ifone prong ofthe test fails, we need not address the remaining prong. State

v. Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563 (1996). We presume that counsel was 52No. 32683-7-111 State v. Betancourth

effective. Stricklandv. Washington, 466 U.S. at 689-90; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Deficientperformance occurs when counsel's performance falls below an objective standard ofreasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). The burden is on Ray Betancourthto show deficientperformance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To rebut the strongpresumption that counsel's performance was effective, Betancourth must establishthe absence ofany conceivable legitimate tactic explaining counsel's failure to object to the State's repeated

use ofthe phrase "beatthe shit out of'during closings. State v. Hamilton, 179 Wn. App. 870, 879-80, 320 P.3d 142 (2014). To rebut this presumption, Betancourth must demonstrate trial counsel's failure to object could not be characterized as a legitimate trial strategy or tactic. State v. Grier, 171 Wn.2d at 33. Where counsel's alleged error is failure to object to evidence, the defendant must showthat the objection would have been sustained. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (199_8). Ray Betancourth's trial counsel did notperform deficiently. Betancourth admits that mentioning the phrase a few times would be acceptable. Betancourth argues that the State's repeated use ofthe phrase was improper, but does not identify whentrial counsel should have objected. He does not indicate how many times was too many times. We agree with the State that we cannot decipher when and even whetherthe trial court would have affirmed an objection to the use ofthe phrase because the State was quoting from 53No. 32683-7-III State v. Betancourth

evidence in the record. The decision whether to object is a classic example oftrial tactics and only in egregious circumstances will the failure to object constitute ineffective assistance ofcounsel. State v. Kolesnik, 146 Wn. App. 790,801, 192 P.3d 937 (2008). Sentence Ray Betancourth contends that the trial court erredby imposing discretionary legal financial obligations and imposing a mandatory DNA (deoxyribonucleic acid) collection fee. Because we vacate the conviction for second degree murder and remand for a new trial, we also vacate Betancourth's sentence. Upon a new trial or any dismissal ofthe charge ofsecond degree murder, the trial court shouldresentence Betancourth. State Motion to Consolidate The State moves to consolidate this appeal with Ray Betancourth's appeal No. 33954-8. In that appeal, Betancourth challenges the trial court's denial ofhis motion for

a new trial. The State argues that consolidation may aid ourreview by providing additional insights and evidence from the trial court. We deny the motion to consolidate. CONCLUSION We reverse the conviction ofRay Betancourth for second degree murder and remand the case for a newtrial on this charge. We deny Betancourth's requestto preclude use ofhis statements uttered during his two police station interviews and to exclude text messages subpoenaed from Verizon. We affirm Betancourth's conviction for first degree assault. 54No. 32683-7-III State v. Betancourth

A majority ofthe panel has determined this opinion will notbeprinted inthe Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:

Pennell, J.

55