### Mil v.v -6 K.'. n: 'u

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. WARREN MILTON RICHARDSON II, a/k/a WARREN MILTON RICHARDSON Appellant. NO. 67746-2- DIVISION ONE

UNPUBLISHED OPINION
FILED: July 8, 2013

Lau, J. —Warren Richardson appeals two first degree robbery convictions. He contends that (1) under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

### 694 (1966), the trial court should have suppressed a statementpolice recorded while he was a patient inthe hospital, (2) he was denied a fair trial because the trial court 

### mistakenly provided his unredacted statementto thejury during deliberations, and (3) the trial courterred in refusing to impose an exceptional sentence below the 

### standard range. We find no trial court errorinthe admission ofRichardson's redacted statement. But because reasonable grounds existto believe Richardson may have67746-2-1/2
been prejudiced by thejury's receipt of his unredacted statement, we reverse and remand for a new trial. FACTS Sterling Savings Bank Robbery 

### On November 6, 2009, a man robbed the North Bend Sterling Savings Bank. He 

### approached bankteller Christine McCartney and told her, "I'mhere to rob you." Report 

### ofProceedings (RP) (July 12, 2011) at 185. McCartney asked himifhe was kidding. The man demanded money. McCartney was nervous and had trouble opening her drawer. The man said, "Don't make me get my gun out." RP (July 12, 2011) at 186, 200-01. McCartney thought he appeared slightly intoxicated, but his voice was serious and firm. She observed no slurred speech. McCartney placed some small denomination bills on the counter. The man 

### asked for more money. She responded that itwas late inthe day on a Friday and that


### was all she had left. The man took the money and walked out quickly and deliberately. McCartneydescribed the man to police as approximately 55 years old, with gray hair and a stubbly beard. Personal banker Mary Fairbrook activated the bank's silent alarm when she saw McCartney and the bank robber. Fairbrook described the man to police as a "wellweathered" white male, about 50 years old, with shoulder length gray hair under his hat. RP(July 12, 2011) at 227. Frontier Bank Robbery Three days later, a man in his 50s orearly 60s walked into the Frontier Bank in Ballard. As bank teller Krisna Mohlergreeted the man, she grew nervous because he
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was intenselyfocused on getting close to herteller's window. At herwindow, he said, 

### "[G]iveme allyourtens, twenties, and allyour money." RP (July 13, 2011) at 290. Bank branch managerTamara Berft noticed the man walk in. She saw white 

### tape on his fingers and instinctively knew something was wrong. Berftwalked behind the teller window to assist Mohler. 

### Mohler mouthed the word "robbery" to Berft, and Berfttriggered the bank's silent alarm. Mohler gave the man money from herdrawer. She also gave him her "alarm 

### bill," whichtriggered another silent alarm. She also gave the man a dye pack—an explosive device made to look like a pack of billsthatemits dye, smoke, and pepper spraywhen removed from the bank. Mohler also noticed white electrical-styletape covering each of his fingertips. The man took the money, walked briskly out ofthe bank, and ran through the parking lot. Mohlertestified thatthe man appeared determined, focused, and goal oriented. She noted no coordination problems or slurred 

### speech. When the man ran through the parking lot, another bank employee saw the 

### dye packexplode.1 Investigation King County SheriffDetective Mike Mellis investigated the North Bend robbery. He obtained copies of surveillance images from Sterling Savings Bank, but the images
were not very clear. Detective Mellis forwarded the case information to the FBI's bank robbery task force. A few days later, a taskforce member responded that a robbery also occurred at the Ballard Frontier Bank. He noted that the Ballard suspect


### 1Attrial, Mohlerand Berftidentified Richardson in the courtroomas the man who robbed the Frontier Bank.67746-2-1/4
resembled the North Bend suspect. The Ballard Frontier Bank robbery surveillance video images recorded the robber's face clearly. Detective Mellis distributed still photographs from the Ballard robbery to the North Bend police and to a local North 

### Bend newspaper. On November 15, 2009, John Provo flagged down King County SheriffDeputy Robert Henry in a North Bend parking lot. Provo told Deputy Henry that he sawthe bank surveillance photographs inthe local paper and recognized the bank robber as Warren Richardson. Provo said he sold Richardson a motor home several months earlier. Provo also said he received a phone call from Richardson's son, Harold, that morning. Provo told Deputy Henry about Richardson's current location. Deputy Henry gave that information to Detective Mellis. Detective Mellis learned that Richardson was in the intensive care unit (ICU) at Harborview Medical Center. He visited Richardson to see if he resembled the individual in the bank surveillance images. Detective Mellis arrived at Harborview around 8 am on November 16. A nurse directed him to Richardson's room and told him that Richardson

was awake and alert. 

### Harborview security officer Craig Compton accompanied Detective Mellis to Richardson's room and stood in the hall while Mellis first made contact with Richardson. 

### Detective Melliswore plain clothes, "probably
. . . slacks and some kind of ajacket 

### to . .. hide [his] badge and gun and allthose things in a public environment." RP (July 7, 2011) at 64. Officer Compton was in uniform. When Detective Mellisentered the room, Richardson was in bed either sleeping or resting. Richardson had intravenous 

### and otherelectronic monitoring devices attached to him. He immediately responded

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when Detective Mellis entered the room and said hello. Detective Mellis noted Richardson's close resemblance to the robber in the surveillance images. Detective Mellis came up with a "ruse" to see Richardson's reaction. He told 

### Richardson that the investigation was over, he knew Richardson was the robber, and he wanted to ask Richardson aboutthe crimes. Richardson paused for a moment and then admitted he had robbed two banks, one in North Bend and one in "north Seattle somewhere." RP (July 14, 2011) at407. Richardson spoke briefly to Detective Mellis about the stress in his life at the time he committed the robberies. When Detective 

### Mellis askedRichardson torecord his statement, Richardson agreed.2 Detective Mellis called Officer Compton into the room as a witness to the recorded statement. Detective Mellis turned the recorder on and read Richardson his 

### Miranda rights. Detective Mellis told Richardson that normally he would inform himthat he was free to walk away from the conversation, "But since we're in a hospital and 

### you're laying here, I'mgonna read you your rights anyways." Ex. 31 at 1. Detective Mellis explained to Richardson: 

### [A] lot ofpeople think it's black and white. Either they talk to the cops orthey don'ttalk to the cops. Butthe truth is rightthere, number six. It's, it's up to you 

### when you talk and when you don'ttalk. You can starttalking, stop talking. It's up to you. Do you understand? 

### Ex. 31 at 2-3. Richardson agreed to waive his rights and give a recorded statement. Throughoutthe recorded conversation, Detective Mellisevaluated Richardson's alertness, specifically checking to see ifRichardson was staying awake, making eye 

### 2Thisinitial conversation, including the "ruse," was not recorded. Because Officer Compton was standing outside the room, Detective Mellis'stestimony is the only evidence in the record regarding what was said during this initial contact. The initial interview lasted "a few minutes." RP (July 12, 2011) at 266. -5-67746-2-1/6
contact, paying attention, and understanding the conversation. Detective Mellis determined that Richardson was communicative, responsive, and that his answers made sense. Officer Compton similarly testified that Richardson had no trouble making eye contact and his answers were coherent and responsive. At one point during the interview, Officer Compton was called away to respond to an incidentelsewhere inthe hospital. He was not presentfor the remainder ofthe interview. During the recorded conversation, Detective Mellis asked Richardson what led him to rob the Sterling Savings Bank. Richardson responded, "I'll tell you exactly what led me up to it. Place is a cake walk. Anybody could rob thatthing." Ex. 31 at 5. 

### Richardson also described his motive for the crime: "I said, Ineeded some money now. We're absolutely broke." Ex. 31 at 6. Richardson said the banktellerhad "chumped 

### [him] good
.... fooled [him] pretty good" by giving him all ones and fives. Ex. 31 at 6. He remembered that he received $335 inthe robbery. When asked if he remembered what he said to the bank tellerat Sterling Bank, Richardson said, "I rememberexactly what Isaid because Iwanted to make damn sure Ikept itsimple." Ex. 31 at 8. Richardson said he did not use a note and did not have a gun. Richardson told Detective Mellis that his sons, Warren Jr. and Harold, were angry with him for planning to rob a bank and tried to talk him out of it. Richardson ignored them because he 

### "thought [he] was gonna get a bunch ofmoney." Ex. 31 at 10. Richardson told Detective Mellis that he used some ofthe Sterling Bank robbery 

### moneyto rent a motel room in north Seattle along a major north/south arterial. He admitted robbing a FrontierBank but forgot its exact location exceptthat itwas in the north Seattle area. Although Richardson forgot what he was wearing during the Frontier
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Bank robbery, he remembered other specific details. He remembered receiving more money than inthe Sterling Bank robbery, and he told Detective Mellis how the Frontier 

### Banktellers "threw ajokerinto the deck" (referring to the dye pack). Ex. 31 at 14. Richardson told Detective Mellisthatthe dye pack exploded in his hands as he was "hauling ass, running trying to get away." Ex. 31 at 15. He rifledthrough the money afterward, and saved a few unburned bills. 

### Richardson and Detective Mellis also discussed why Richardson was inthe hospital: Det: And then how long have you been here atthe hospital? Sus: This'll be going on my second day. Det. Okay. And are you here for, just kind ofreview or it'sjustfor evaluation? Sus: No; I'm here for a sodium deficiency, which had made me act crazy. And ah, and ah, they, they keep checking my, my chemical stats. Det: Urn hum. Sus: Human beings have to have a certain amount of sodium in 'em, and mine gotway too low. And itmakes you dangerously, ah, defunct mentally. Det: Okay. Sus: Iwish Icould claim that happened before Idid the robberies. 

### Det: Well, so was this driven byjust being broke, desperation? Is thattrue? Sus: Yes; itwas. Itried to get a job. Itried everywhere to get a job. Imean I'd ratherwork any day. And Ihave a goodjob inAlaska, which I'm obviously not gonna getto go to now, ah. Ex. 31 at 16. Detective Mellis also asked Richardson what he thought should happen to 

### him, and Richardson responded, "What should happen to me is Igo to jail, and ah, face 

### up for two counts ofrobbery three. That's what Ideserve. Imean Imade sure I, I tailored it to be robbery three." Ex. 31 at 17. Richardson was adamantthat he "did do those two robberies." Ex. 31 at 7.67746-2-1/8
Afterthe interview, Detective Mellis spoke to his supervisor and decided to 

### formally arrestRichardson.3 Detective Mellis laterexecuted a searchwarranton Richardson's motor home. He observed reddish-pink stains on the entry door handle, captain's chair, and bathroom sink. Forensic scientist Martin McDermot analyzed swabs from the chair and the sink and found they contained the same red dye listed on the material safety data sheetfor the dye pack that exploded outside Frontier Bank. Pretrial and Trial 

### The State charged Richardson with two counts of first degree robbery. The defense moved under CrR 3.5 and 3.6 to suppress Richardson's statements to Detective Mellis and all evidence obtained as a result ofthose statements. Richardson argued that he was "in a vulnerable suggestive state" in the hospital and that he "was notfree to leave his hospital room and could hardly have asked the police officerto leave." Detective Mellis and Officer Compton testified atthe CrR 3.5 hearing. Richardson presented no evidence and declined to testify. Following the pretrial 

### testimony, Richardson argued that his statements were involuntary. He blamed his medical condition and claimed that Detective Mellis spoke too fast, failed to give him a 

### written copy of his rights, and improperly "embellished" and clarified certain rights in a way that encouraged Richardson to make a statement. The court ruled Richardson's hospital statement admissible, finding that 

### Richardson's rights were explained to him, he understood those rights, and he 

### voluntarily waived them. The court discussed Richardson's mental state: 

### 3Detective Mellis testified at the pretrial CrR 3.5 hearing that he initiallydid not intend to arrest Richardson and made that decision only upon consulting with his supervisor aftertaking Richardson's recorded statement. -8-67746-2-1/9
As far as whether he was coherent or not, there certainly does seem to be evidencejust inthe statements that his memory was not 100 percent because he said several times his brain wasn'tworking and he had a hard time remembering.
. . . But he remembered significantdetails about the events and why he chose the bank because "it's a cakewalk," the amount ofthe money that was taken, which was not released. 

### RP (July 11, 2011) at 146. The courtfound he made a knowing, intelligent, and voluntary waiver. 

### Afterthe CrR 3.5 hearing, the courtentered written findings and conclusions that adopted by reference its oral findings and conclusions. The courtfound the following undisputed facts:

a. On November 11, 2009, Detective Mike Mellis went to Harborview Hospital and contacted the defendant. He contacted the defendantwho was conscious. The defendant responded to questions putto him by Detective Mellis. b. Detective Mellis read the defendant his Miranda warnings. The defendant acknowledged the warnings and waived the Miranda warnings orally. c. The defendant told Detective Mellis that he did commit two bank robberies. Mr. Richardson provided the exact amount ofmoney he remembered stealing. He said he thoughtthatthe North Bend Bankwas called Cascade Bank. He also said he robbed a bank in North Seattle or Ballard called the Frontier Bank. The court also made the following disputed findings:
a. The defendant was rational and coherentwhen he spoke to Detective Mellis in his hospital room. b. He had the capacityto understand and waive his rights. c. He did understand and waive his rights. 

### d. The statements he gave were voluntary. He was not coerced nordid the actions ofthe detective "overcome" his will. 

### Based on those findings, the court admitted Richardson's statementto Detective Mellis "because Miranda was applicable and the defendant's statements were made after a 

### knowing, intelligent and voluntary waiverof his Miranda rights." RP (July 11, 2011) at 147-49. The court denied Richardson's reconsideration motion. The parties agreed to
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### redact portions ofthe taped interview that referred to Richardson's prior robbery convictions. At trial, Richardson's son, Harold, testified aboutthe days and weeks surrounding the robberies. Harold testified that Richardson was drinking heavily and that by late October 2009, he nearly ceased eating and vomited frequently. Harold recalled a day when Richardson picked him up in North Bend in his motor home and told him they were going to Seattle. Harold testified thatthey drove to the "Fremont Ballard area" and parked the motor home. RP (July 19, 2011) at 572-73. Harold bought Richardson beer and Richardson experienced dizzy spells and drank alcohol. Harold left and returned to find Richardson and the motor home gone. When Richardson returned, he told Harold they were moving again. Richardson had red residue on his hands andjacket. Richardson then drove away erratically and 

### high-centered the motor home inthe road. They leftthe motor home inthe road, spent the night on the street, and rented a motel room in Lynnwood the next day. They stayed at the motel for about a week. Richardson's condition worsened to the point he could not hold down alcohol. Harold left to call 911. When he returned to the motel, 

### Richardson was gone. Concerned citizens found Richardson, and medics took him to 

### StevensHospital onNovember 14, 2009.4

4When he arrived at Stevens's Emergency Department on November14, Richardson had severe hyponatremia (lowsodium), hypokalemia (lowpotassium), and 

### hypochloremia (low chloride). Hetested negative for alcohol but positive forcocaine and opiates. The doctors feared he might have a subarachnoid hemorrhage, so he was transferred to Harborview.
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Richardson also called Dr. Stephen Juergens, a psychiatrist. He testified that at the time ofthe robberies, Richardson was in a "delirium" caused by electrolyte imbalance. Dr. Juergens testified that Richardson's heavy ingestion ofalcohol, cocaine, and heroin, combined with lack offood, caused him to develop severe hyponatremia 

### (sodium deficiency) that caused his delirium. According to Dr. Juergens, this delirium led to cognitive impairment and poorjudgment. The court instructed thejury on diminished capacity and voluntary intoxication. Thejury rejected those defenses and convicted Richardson as charged. At sentencing, Richardson requested an exceptional sentence downward, arguing that his "capacity to appreciate the wrongfulness of his conduct, or to conform his conductto the requirements ofthe law, was significantly impaired" at the time he committed the robberies. (Capitalization and boldface omitted.) He argued that he suffered from 

### hyponatremia "broughton by [his] drinking alcohol, and not taking inadequate food and water" and thatthe resulting electrolyte imbalance affected his brain function. He also argued that due to his age, itwas "not a frugal use ofthe State's resources to incarcerate himthrough the bulk of his remaining working years." To support his exceptional sentence request, Richardson submitted Dr. Juergens's written psychiatric 

### evaluation, in which Dr. Juergens concluded that Richardson's "delirium" stemmed from
an electrolyte imbalance that was broughton by a combination ofalcohol use, vomiting, and inadequate food: 

### Ibelieve the patient did sufferfrom a delirium related to hyponatremia, 

### hypokalemia, hypochloremia that occurred in the contextof a lack of intake of food and heavy alcohol intake as well as the effects ofuse ofcocaine and heroin. 

### He is alcohol, heroin and cocaine dependent; however, Ibelieve that itwas the 

### delirium related to the electrolyte abnormalities thatwas related to his lack of
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intake offood, the intake ofalcohol and the vomiting that he had after drinking the alcohol that caused the delirium and this led to the behavior ofthe bank robberies. 

### (Emphasis added.) The court rejected Richardson's exceptional sentence request and sentenced him to serve a concurrent standard range sentence of 129 months on each

count. ANALYSIS Extrinsic Evidence 

### Richardson contends thejury received prejudicial extrinsic evidence during deliberations, namely an unredacted copy of his recorded statementto Detective Mellis. 

### The State agrees thatthe inadvertent submission ofthe challenged evidence was erroneous, but contends that Richardson fails to show thatthejury actually considered 

### theextrinsicevidence and,thus, fails toestablish prejudice.5
Relevant Facts As discussed above, the court admitted Richardson's recorded statement. The court granted the State and defense counsel's agreed motion to redact portions ofthe statementwhere Richardson referenced his prior robbery convictions. The State prepared an exhibit based on the redactions requested by defense counsel. The redacted statementwas admitted and played to thejury. Upon hearing the exhibit, defense counsel moved, outside thejury's presence, for a mistrial based on ineffective assistance ofcounsel because she inadvertently missed a reference to Richardson's



### 5The State conceded at oral argument that the unredacted statement, ifactually heard by thejury, would have prejudiced Richardson. -12-67746-2-1/13 

### priorrobberies when she provided her proposedredactions to theprosecutor.6 The court agreed the statements should have been redacted but denied the mistrial motion. The court proposed that the parties redact the erroneous statement and offered to 

### instructthejury not to considerpriorconvictions. Defense counsel declined the limiting instruction over concern that it would draw attention to the error. The State then made 

### the additional redactions to a new compactdisc (CD), marked as Exhibit 29, which was provided to thejury during deliberations. In addition to the CD containing Richardson's recorded statement, the court admitted a video disc (DVD) ofthe surveillance video from Frontier Bank as Exhibit 27. 

### Richardson objected to allowing thejury unlimited access to Exhibits 27 and 29. 

### Richardson asked thatthejury be permitted to view or hearthe exhibits only inopen court on request. The court denied Richardson's request and allowed thejury to requestthe exhibits and a CD player so they could view the exhibits inthejury room. Richardson also objected to thejury's unlimited access to his recorded statement 

### and the video surveillance from the robberies during deliberations. The court ruled that thejury would be allowed to view the video surveillance (Exhibit 27) and listen to the redacted statement (Exhibit 29) only one time each. By supplemental instructions, the 

### courttold thejury, "Exhibit 27 may be viewed once during deliberations." However, the court neglected to inform thejury itcould listen to Exhibit 29 only once. The court also instructed thejury: 6The statement defense counsel failed to redact occurred when Detective Mellis asked Richardson ifhe put his hand in his pocket and pointed his finger to simulate a 

### gun "likethe classic ah, movie thing" while robbing the banks. Ex. 30 at 10. Richardson responded, "I deliberately avoided that.
... Because that's whatgot me introuble the last time." Ex. 30 at 10. -13-67746-2-1/14 

### Exhibit 29 was played for you during the trial, and you were allowed to 

### follow along inthe transcript. The recording had been redacted to exclude any portions that the Court determined was inadmissible. Since this exhibitwas played for you in court an errorwas discovered. The current exhibit contains the correctly redacted version. 

### Ifyou wish to view this exhibit notifythe bailiffand she will bring the exhibit and a viewer into thejury room foryour use. Please notifyherwhen you have completed your viewing, so she may pick up the exhibit and the viewer. 

### Ifyou choose to view this exhibit and your notes or memory ofthe contents of this exhibit are differentfrom what is currently contained in the exhibit, please rely on the contents ofthe actual exhibit. RP (July 20, 2011) at 659-60. Exhibit 29 contains the properly redacted audio file of Richardson's recorded 

### statementto Detective Mellis. Exhibit 27 contains the bank video surveillance images, but it also contains an audio file of Richardson's unredacted statement to Detective Mellis. Exhibit 27 is a DVD that contains a folder titled "Frontier Bank Ballard Branch video and stills." Ex. 27. The video surveillance images are located inthatfolder. Through inadvertence, Exhibit 27 also contains a foldertitled "Digital Statements" and within that folder, anotherfolder titled "Warren Richardson." Ex. 27. Richardson's unredacted recorded statement is inthatfolder.7 Thejury asked to listen to Richardson's recorded statement (Exhibit 29) at 11:28 

### am on July 20, 2011. Thejury wentto lunch at 12:00 pmthat day. Thejury resumed deliberations at 1:00 pm. Then, at 1:32 pm, thejury asked to view the bank surveillance video (Exhibit 27). Twenty minutes later, at 1:52 pm,thejury told the bailiff ithad reached a verdict.



### 7The DVD also contains (1) anotherfoldertitled "Dye packinfo," containing a material safety data sheetand (2) a Word documenttitled "Compton Witness statement." Ex. 27. -14-67746-2-1/15 Analysis Our Supreme Court has held, "[l]t is errorto submitevidence to thejury that has
not been admitted at trial." In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 705, 286 

### P.3d 673 (2012); see also State v. Pete, 152Wn.2d 546, 553-55, 98 P.3d 803 (2004). "The 'long-standing rule' is that 'consideration ofany material by a jury not properly admitted as evidence vitiates a verdictwhen there is a reasonable ground to believe 

### thatthe defendant may have been prejudiced.'" Glasmann, 175 Wn.2d at 705 (quoting 

### Pete, 152 Wn.2d at 555 n.4). See also State v. Rinkes, 70 Wn.2d 854, 862, 425 P.2d 658 (1967); State v. Boqqs, 33 Wn.2d 921, 933, 207 P.2d 743 (1949) (overruled on other grounds by State v. Parr, 93 Wn.2d 95, 606 P.2d 263 (1980)). "Novel orextrinsic evidence is defined as information that is outside all the evidence admitted at trial, either 

### orally, or by document" and is improper "because it is not subjectto objection, cross 

### examination, explanation or rebuttal." Pete, 152 Wn.2d at 552-53 (internal citations omitted). 

### It is undisputed thatthejuryreceived inadmissible and prejudicial evidence. The criticalquestion iswhether reasonable grounds exist to believe that Richardson may 

### have been prejudiced by this evidence. The State contends that Richardson cannot 

### prove the jury actually listened to the unredacted statement. The State claims that the statementwas approximately 37 minutes long and only 20 minutes elapsed between the time the juryrequested Exhibit27 and the time thejuryreturned its verdict. 

### Richardson argues no proof is required to show that the jury actually listened to the statement and reasonable grounds exist to believe he may have been prejudiced.

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In Rinkes. the trial court inadvertently sent a newspaper editorial and cartoon into thejury room. Rinkes. 70 Wn.2d at 860. The editorial and cartoon "were most critical of supposedly lenient court decisions incriminal actions, and criticized certain allegedly liberal probation policies ofsome ofthejudges ofthe King County Superior Court." Rinkes. 70 Wn.2d at 860. Our Supreme Courtfound the extrinsic material inherently prejudicial: Here we have a case where notjustthe characterofthe defendantwas attacked, but ratherthe alleged leniency ofthejudicial process in regard to criminals. The material published inthe newspaperwas clearly intended to influence the readers of it to be concerned about the purported leniency to 

### alleged criminals ofSeattle areajudges. Itwas so calculated that itmay well 

### have evoked in jury members feelings or convictions ofthe necessityfor being stricter and less careful about observing legal principles and procedure indealing with defendants accused of crime. We think the material was very likely indeed to prejudice the cause ofthe defendants inthis case. . . . We are convinced that the defendants were unable to meet or cope with 

### the prejudicial effect ofthe material. The jury had no guidelines or specific instructions regarding it. Underthe circumstances, we will not speculate at great risk to the defendants. We feel compelled to assume thatthe requisite balance 

### of impartialitywas upset. We note particularly thatthis is not a case, such as State v. Adamo. 128 Wash. 419, 223 P. 9 (1924), where thejury was instructed not to considerthe extraneous newspaper material, and could be presumed not to have done so, since itwas a matter outside the evidence. Nor do we have a case, such as State v. Harris, 62 Wash.2d 858, 385 P.2d 18 (1963), where 

### interrogation ofthejury bythe trial court established that no jurymemberhad read the questionable portion of a newspaper article which was found inthejury room. Inthe instant case, thejury was ineffect instructed to considerthe very 

### likely prejudicial material since itwas marked as an exhibit and they were specifically instructed to consider allthe exhibits. We can onlypresumethatthe members ofthejury did as they were instructed. Rinkes, 70 Wn.2d at 862-63. 

### In Pete, the trial court inadvertently senttwo unadmitted documents into thejury


### room—a police officer's written report recounting statements Pete made while being 

### transported to the police station and Pete's ownwritten and signed statement. Pete.

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152 Wn.2d at 550. When the error was discovered, the bailiffretrieved the two documents and instructed thejurors to disregard them during deliberations. Pete. 152 Wn.2d at 550-51. The record did not indicate how much time elapsed between the time the bailifftook the documents into thejury room and the time she removed them from the room. Pete. 152 Wn.2d at 551 n.1. Thejury convicted Pete ofsecond degree robbery. Pete. 152 Wn.2d at 551. When polled by the trial court, "at leasttwo or three jurors" indicated they had seen and/or read the unadmitted documents before the bailiff retrieved them. Pete. 152 Wn.2d at 551 n.2. Pete moved for a new trial, claiming he was prejudiced by thejury's receipt of extrinsic evidence. Pete, 152 Wn.2d at 551. The trial court denied the motion, finding the error harmless because "(1) the documents were in thejury room for only a brief amount oftime, (2) thejury was instructed to disregard the documents, and (3) the statements contained in the police report and Pete's written statementwere exculpatory in nature." Pete. 152 Wn.2d at 551. Our Supreme Court accepted discretionary review and reversed. The court 

### applied the long-standing rule, discussed above, "that 'consideration ofany material by 

### a jury not properly admitted as evidence vitiates a verdictwhen there is a reasonable ground to believe that the defendant may have been prejudiced.'" Pete. 152 Wn.2d at 

### 555 n.4 (quoting Rinkes. 70 Wn.2d at 862). The court noted thatthe two statements


### were not entirely exculpatory and, "when the two unadmitted statements are viewed together, they are harmful to Pete inthe sense thatthey are contradictory and could 

### suggestto a jury that Pete is a liar who cannotbe believed." Pete, 152Wn.2d at 554. The court determined thatthe extrinsic evidence prejudiced Pete: "The submission of
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the two documents to thejury seriously undermined [Pete's general denial defense] and nothing short of a new trial can correctthe error." Pete. 152 Wn.2d at 554-55. In State v. Smith. 55 Wn.2d 482, 348 P.2d 417 (1960), unproven aliases wentto thejury by mistake on thejury instruction cover sheet and on the verdictforms. Smith. 

### 55 Wn.2d at484. The State conceded the error but argued that itwas harmless. Smith. 55 Wn.2d at484. The defendant claimed prejudice, butthe trial court denied her 

### motion for new trial. Smith, 55 Wn.2d at 484. Our Supreme Court reversed, resolving any doubt aboutwhetherthejury was affected infavor ofthe defendant: It is admitted that submitting the aliases to thejury was error, butthe state claims no prejudice resulted. It is common knowledge thatthe use of aliases is frequently associated inthe public mind with the so-called 'criminal' cases. We cannot assume thatthe jurywas unaffected by the unproved aliases. To do so would be sheer speculation. The doubt must be resolved in favor ofthe accused. Smith, 55 Wn.2d at484 (emphasis added). Rinkes. Pete, and Smith control. In his unredacted statement, Richardson admitted to a history ofrobbing banks, including several robberies in 2000, only to be 

### caught in2001. He stated that he "used to get a bunch ofmoney" in prior robberies. Ex. 30 at 5, 11. He also talked about being "in jail awaiting prison" for the prior robberies. Ex. 30 at 18. Richardson said that he tailored the Ballard and North Bend 

### crimes to be "robberythree" based on his priorexperience and his review ofthe sentencing guidelines while inprison forthe priorrobberies. Ex. 30 at 18. He said his 

### parole officermade very clearhe was not allowed to own a firearm. Detective Mellis also asked Richardson whether he had committed any crimes since he "got out ofthe 

### joint on [his]previous robbery spree" and asked him what made him "do it again." Ex. 30 at 20. Later in the interview, Richardson stated that the Ballard and North Bend
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robberies were the only two he had committed recently but confirmed that he had committed others previously. All ofthese statements involve evidence ofprior bad acts, made even more prejudicial because the prior bad acts involve the same crime for which Richardson was currently on trial—robbery. See State v. Acosta, 123 Wn. App. 424, 435, 98 P.3d 503 (2004) (holding that potential prejudice far outweighed probative value oftestimony that defendant had previously committed the same crimes for which he was currently on trial). Admission ofsuch evidence is strictly limited by ER 404(b) and ER 609. See ER 404; State v. Gresham. 173 Wn.2d 405, 420-21, 269 P.3d 207 (2012) (ER 404(b) is 

### "categorical bar" to admission ofevidence to prove person's characteror show he acted in conformance with that character.). During trial, these statements were properly 

### redacted exceptforthe one defense counsel overlooked—and Exhibit 29 contained the 

### fully redacted version. Even assuming Richardson's redacted confession was properly admitted—and taking intoaccountall ofthe otheruntainted evidence—the unredacted statement, ifheard bythejury, seriously impaired Richardson's mental 

### impairment/voluntary intoxication defenses and detracted from his credibility. Reasonable grounds exist to believe Richardson may have been prejudiced when jurors 

### improperlyreceived ER 404(b) propensity evidence that the trial court had earlier excluded because of its prejudicial nature. Glasmann. 175 Wn.2d at 705. Far less 

### prejudicial submissions to the jury have resulted in reversal. Smith. 55 Wn.2d at 484. We are notpersuaded by the State's speculative claimthatthe time between the jury's 

### Exhibit27 request and its verdictmeans the jury never listened to the unredacted statement. As in Pete, the statement here was contained in an exhibit. The court's
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### instructiondirected thejurytoconsiderall theevidence.8 Anydoubtmust beresolved in favor ofthe accused.9 Smith. 55 Wn.2d at 484. Additional facts indicate that Richardson may have suffered prejudice. 

### Richardson did not testify during trial, and thejury heard evidence implicating Richardson's prior robbery. See supra note 6 and related discussion. Defense counsel 

### made a tactical decision not to request a curative instruction, and thejury received no oral admonishmentto disregard that evidence. The effect ofthis additional propensity 

### evidence, togetherwith Richardson's unredacted confession, establish prejudice. See Acosta. 123 Wn. App. at 435 (testimony thatdefendant had previously committed the
same crimes for which he was currently on trial was highly prejudicial). Because Richardson may have suffered prejudice based on the erroneous admission ofthe 

### unredacted statement, we reverse his convictions and remand for a new trial.10



### 8Becausethis case involves nojurormisconduct, the State's reliance on case authority involving misconduct byjurors during deliberations is unpersuasive. The court erred, notthejury. 

### 9The State also argues thatRichardson bears the burden to showthat thejury actually considered the unredacted statement. Itcites no controlling authority to support this contention. See State v. Logan. 102Wn. App. 907, 911, 10 P.3d 504 (2000) 

### ("Where no authorities are cited in support of a proposition, the court is not required to 

### search out authorities, but may assume that counsel, afterdiligent search, has found none.") (quoting DeHeerv. Seattle Post-Intelligencer. 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). 

### 10We conclude the error was not harmless givenall of the circumstances in this case as discussed above. -20-67746-2-1/21

Richardson's Statements to Detective Mellis 

### Richardson argues his statements were inadmissible. He contends that (1) his 

### mental condition rendered them involuntary and (2) Detective Mellisdeliberately used
an impropertwo-step interrogation procedure to undermine Miranda's requirements. 

### We review the trial court's evidentiary rulings for abuse ofdiscretion. State v. Lane. 125 Wn.2d 825, 831, 889 P.2d 929 (1995). A trial court abuses its discretion if its 

### decision is manifestly unreasonable or based on untenable grounds or reasons. State
v. Wilson. 144 Wn. App. 166, 183, 181 P.3d 887 (2008). "[T]he rule to be applied in confession cases is thatfindings offact entered following a CrR 3.5 hearing will be verities on appeal ifunchallenged; and, ifchallenged, 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 exists where there is a sufficientquantity ofevidence inthe record to persuade a fair-minded, rational person ofthe truth ofthe finding." State

v. Hill. 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Voluntary Waiver Richardson contends that he did not knowingly, intelligently, and voluntarily 

### waive his privilege against self-incrimination because he "was inthe intensive care unit of a hospital due to mental disorientation." Appellant's Br. at 20 (boldface omitted). He 

### argues thatdue to his significant health problems, he was "not mentally capable of understanding the Miranda warnings or executing an intelligent, knowing, and voluntary waiverof his constitutional rights." Appellant's Br. at 23 (formatting omitted). 

### "Mirandawarnings are required when an interrogation or interview is (a) custodial 

### (b)interrogation (c) by a state agent." State v. Lorenz, 152Wn.2d 22, 36, 93 P.3d 133
-21-67746-2-1/22 (2004). The conclusion that a suspect is in custody turns on "whethera reasonable 

### person inthe individual's position would believe he or she was in police custodyto a 

### degree associated with formal arrest."11 Lorenz, 152Wn.2d at37. "'Custody' depends
on 'whetherthe defendant's movementwas restricted at the time ofquestioning,' and necessarily thatthe police restricted that movement." State v. Butler, 165 Wn. App. 820, 827, 269 P.3d 315 (2012) (quoting Lorenz, 152 Wn.2d at 36). Whetherpolice intend to arrest, whetherthe environmentwas coercive, or whetherthere was probable
cause to arrest at the time ofquestioning are all irrelevantto the custody determination. Butler, 165 Wn. App. at 827. The relevantquestion is "whetherthe suspect's movement is restricted atthe time ofquestioning." Butler, 165 Wn. App. at 827. Under Butler, a person required to lie flat in bed inthe ICU is not necessarily in custody for Miranda purposes when he speaks to a detective in his hospital room. 

### Butler. 165Wn. App. at827-28.12 SimilartoButler, Richardson was hospitalized due to


### 11 In his replybrief, Richardson describesthecustodydetermination interms of whether a reasonable person would have felt he was not at liberty to terminate the interrogation and leave. Appellant's Reply Br. at 9. He mischaracterizes the standard. Our case law is clearthatthe ultimate legal question is whether a reasonable person in the defendant's position would have believed his or herfreedom was curtailed to a 

### degree associated with formal arrest. See Lorenz, 152Wn.2d at 37; State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004). 

### 12TheButlercourtexplained, "In Statev. Kelter, forexample, thecourt addressed whether a suspectwas in custody when police interviewed him in his 

### hospital room. 71 Wash.2d 52, 54, 426 P.2d 500 (1967). Mr. Kelter was inthe hospital and under investigation for causing a fatal carcrash. The court refused to conclude that Mr. Kelterwas in custody even though he was confined to his hospital room because he had not 'been placed under arrest or otherwise restrained by the police.' |d_, Mr. Kelter 

### was restricted to a hospital room, by his own injuries, not by police. Mr. Butler similarly was restricted to his hospital room because of his injuries. No police were stationed inside oroutside Mr. Butler's room. And itwas Mr. Butler's nurse, Mr. Henry, who 

### ultimately controlled access to Mr. Butler. These facts supportthe court's conclusion -22-67746-2-1/23
his own actions. As summarized above, Detective Mellis was dressed in plain clothes. 

### OfficerCompton was in uniform and presentonly as a witness. He leftpartway through the interview and returned after Richardson was already under arrest. Per hospital protocol, Richardson's nurse directed Detective Mellis to Richardson's room after he consulted with her. Hospital protocol controlled access to Richardson, not the detective. 

### Richardson wasnotrestrained or underarrestduring theinterview.13 Because the record indicates Richardson was not in custody during the interview, Miranda was not 

### implicated.14 Due process requires that a confession be voluntary and free ofpolice coercion. State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991). Whether a confession is voluntary depends on the totality ofthe circumstances underwhich itwas made. State v. Aten, 130Wn.2d 640, 663-64, 927 P.2d 210 (1996). This examination includes considerations ofthe location, length, and continuity ofthe interrogation; the defendant's 

### maturity, education, physical condition, and mental health; and whetherthe police advised the defendant of his or her Miranda rights. State v. Unga. 165 Wn.2d 95, 101, 

### 196 P.3d 645 (2008). Ifpolice tactics manipulated or prevented a defendantfrom 

### that Mr. Butlerwas not incustodywhen he spoke with Detective Miller." Butler, 165 Wn. App. at 827-28. 

### 13Although Richardson contendsthat he wasin ahospital bedand, thus, unable to get up and walk away fromthe conversation, he fails to show his freedom was curtailed "to a degree associated with formal arrest." Lorenz, 152 Wn.2d at 37. 

### 14The trial courthere assumed withoutanalysis that Richardson was in custody when he made his recorded statement. See Clerk's Papers at 117 ("Miranda was 

### applicable and the defendant's statements were made after a knowing, intelligentand voluntary waiver of his Mirandarights."). But an appellate court may affirm on any basis the record supports. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998). Our review ofthe record indicates Richardson was not in custody. -23-67746-2-1/24 

### making a rational, independentdecision about giving a statement, the statement is inadmissible. Unga. 165 Wn.2d at 102. However, while "[a] police officer's promises or 

### psychological ploys may play a part in a defendant's decision to confess,
... 'so longas thatdecision is a product ofthe suspect's own balancing ofcompeting considerations, the confession is voluntary.'" State v. Rafav. 168 Wn. App. 734, 758, 285 P.3d 83 (2012) (quoting Unga. 165 Wn.2d at 102 (internal citations omitted)). We will not disturb a trial court's determination that statements were voluntary ifthere is substantial evidence inthe record from which the trial court could have found voluntariness by a preponderance ofthe evidence. Broadaway. 133 Wn.2d at 129. Richardson contends that health problems rendered him mentally incapable of understanding the Miranda warnings orvoluntarily confessing. But Washington courts have held that defendants voluntarily waived their Miranda rights in far more dire circumstances. See State v. Cuzzetto. 76 Wn.2d 378, 379, 457 P.2d 204 (1969) (court found voluntary waiverwhere intoxicated defendant made statementto police atthe
scene ofan accident after he was thrown from a speeding vehicle and sustained "two 

### broken and some cracked ribs, a leg injury (which did not prevent his walking), two big 

### lumps on his head, and, naturally, a severe shock"); Aten. 130 Wn.2d at 664 (defendant 

### voluntarily waived her Miranda rights despite being administered Librax—an anti-anxiety medication that has confusion and drowsiness as possible side effects—six hours 

### before speaking with police); Butler, 165 Wn. App. at 828 (quoting United States v. George, 987 F.2d 1428, 1430 (9th Cir.1993)), with approval forthe proposition that a 

### "suspect can 'voluntarily waive his Miranda rights even when he is in the hospital, on medication, and in pain.'").
-24-67746-2-1/25


### Richardson acknowledged to Detective Mellisthat he understood his rights. The recorded interview was not lengthy. Detective Mellis read Richardson his rights, repeated himselfwhen Richardson requested clarification, and carefully explained the rights. Although Richardson forgot certain details ofthe robberies and mentioned that 

### his brain was not working well, both Detective Mellis and Officer Compton testified that he was reasonably aware ofwhat was going on around him and he was able to make eye contact, comprehend questions, give responsive answers, and follow the 

### conversation.15 Theinterviewtranscriptconfirms thatRichardson understood the questions, was cooperative, and gave clear and appropriate answers. See State v. Saunders, 120Wn. App. 800, 810, 86 P.3d 232 (2004) (although defendant appeared 

### inebriated during interrogation session, he was cooperative and gave clearanswers; record supported finding that defendant voluntarily waived his Miranda rights). Detective Mellis spoke to Richardson in a nonthreatening manner. No evidence



### 15 Richardson cites noauthorityestablishing that mereinabilityto remember certain details of a crime renders a confession involuntary. See Logan, 102 Wn. App. at 911 n.1 ("'Where no authorities are cited in supportof a proposition, the court is not 

### required to search out authorities, but may assume that counsel, after diligentsearch, has found none.'") (quoting DeHeerv. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 

### 372 P.2d 193 (1962)). Regarding Richardson's argumentthat he "had difficulty 

### providing simple information, such as his date ofbirth," Appellant's Br. at 24, the record shows that infact Richardson said "1995, 1,1 said itwrong, 1951." Ex. 31 at 20. The detective then said, "Born in '51," and Richardson responded, "Yes." Ex. 31 at 20. This 

### exchangefails to showthat Richardson had trouble giving his birth year. The record also shows Richardson understood the conversation as discussed above. Regardless, 

### a claim ofmental illness or disability is only one factorforthe courtto considerin 

### determiningwhether a confession was voluntary. State v. Davis, 34 Wn. App. 546, 551, 662 P.2d 78 (1983). Here, the court considered Richardson's mental function but 

### properly determined that he had the capacity to waive hisMiranda rights and give a confession.
-25-67746-2-1/26 

### indicates that he coerced or pressured Richardson totalk.16 Substantial evidence supports the trial court's finding that Richardson's statements were voluntary. Two-Step Interrogation 

### Richardson contends that Detective Mellis deliberately used an improper 

### two-step interrogation process designed to thwart Miranda's requirements. Specifically, he claims, "Detective Mellis utilized a question-first process inwhich he interviewed Mr. Richardson and obtained a confession and only later advised Mr. Richardson of his 

### Miranda rights andobtained a more detailedtaped statement."17 Appellant's Br. at 26-
27.


### 16 Richardson claimsthatDetective Mellis "tookadvantage of[his] weakness to obtain the confession by utilizing interview techniques that can easily lead to false confessions," provided Richardson with "information aboutthe crimes which Mr. Richardson then adopted as his own," and "deliberately used the ruse of telling Mr. 

### Richardson that he already knew Mr. Richardson was guilty andjust needed to know if he was armed with orthreatened to use a weapon." Appellant's Br. at 25. But as discussed above, even ifan officer's psychological ploys played a part in a suspect's decision to confess, as long as the decision is "a product ofthe suspect's own balancing ofcompeting considerations," the confession is voluntary. Unga, 165 Wn.2d at 102 

### (citations omitted). Here, no record ofRichardson's initialresponse to Detective Mellis's "ruse" exists, so we are unable to review those statements for voluntariness. Butthe 

### recorded statement clearly shows Richardson thought about his options and decided 

### independentlyto waive his Miranda rights and confess. See Ex. 31 at 3 (Ten minutes into the interview, Detective Mellis—afterreading Richardson his rights—asked Richardson if he was willing to give a statement. Richardson responded, "I've been debating about it allthrough this conversation" and then agreed to give a statement.). 

### The evidence supports the trialcourt's conclusion that Richardson effectively waived his Miranda rights and voluntarily confessed to Detective Mellis. 

### 17 Richardson relies on Missouri v. Seibert, 542 U.S. 600, 616-17, 124 S. Ct. 

### 2601, 159 L. Ed. 2d 643 (2004), in which the Supreme Court disapproved of the 

### "questionfirst" technique of interrogation. Thistechnique involvessuccessive unwarned and warned phases of interrogation, so that the Mirandawarnings are given in the 

### middle of the interrogation. Seibert, 542 U.S. at 609-11. In Siebert, the Supreme Court held that certain "question first" interrogation practices rendered Miranda warnings ineffective. -26-67746-2-1/27 

### As discussed above, Richardson was not incustody when he spoke with Detective Mellis. Even ifwe assume Richardson was incustody during the initial 

### unrecorded interview and Miranda applied, the interviewwas not an improper two-part interrogation. See State v. Hickman. 157 Wn. App. 767, 775, 238 P.3d 1240 (2010) ("'confessions made after a deliberate, objectively ineffective mid-streamwarning'"must be excluded) (emphasis added) (quoting United States v. Williams. 435 F.3d 1148, 

### 1157-58 (9thCir. 2006)). In determining whetherpolice deliberatelywithheld the Miranda warnings, we consider "'whetherobjective evidence and any available subjective evidence, such as an officer's testimony, support an inference thatthe twostep interrogation procedure was used to undermine the Miranda warning.'" Hickman. 157 Wn. App. at 775 (quoting Williams, 435 F.3d at 1158-59. Ifthe courtfinds no 

### deliberateness, the admissibility ofpostwarning statements is governed by Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), which holds that postwarning statements are admissible ifvoluntary. Elstad, 470 U.S. at 318. The record does not support Richardson's assertion that Detective Mellis 

### deliberately attempted to evade Miranda's requirements. Detective Mellistestified that when he arrived at the hospital, his goal was to compare Richardson's appearance with the bank surveillance photographs. When he arrived and saw the resemblance, he made a quick decision to see how Richardson would react ifhe said the investigation
was complete. Richardson immediately admitted his involvement, and Detective Mellis read him his Miranda rights before taking a recorded statement. The prewaming questioning lasted only a few minutes, compared to the 37-minute recorded 

### conversation. And subjectively, Detective Mellisbelieved that Richardson was not in
-27-67746-2-1/28 custody and read him Miranda rights only as a precaution because Richardson was hospitalized. The evidence does not support a conclusion that Detective Mellis 

### deliberately attempted to withhold Miranda warnings inorderto obtain a confession. CONCLUSION 

### Forthe reasons discussed above, the trial court properly admitted the redacted statements. But because it is reasonable to believe that Richardson may have been 

### prejudiced by the jury's receiptof his unredacted statementcontaining references to jail 

## time and priorrobberies, we reversetheconvictions and remandforanewtrial.18

WE CONCUR 

# hrefta, JLA



### 18 Given ourdisposition, we need notaddress Richardson's sentencing challenge. -28-