State Of Washington v. Sergey Vladimorovich Fedoruk ( 2014 )

2014 DEC -
9 Ail 10 : 2y
Uat
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
STATE OF WASHINGTON, No. 43693 -1 - II
Respondent, PART PUBLISHED OPINION
v.
SERGEY FEDORUK,
Appellant.
BJORGEN, A. C. J. A jury found Sergey Fedoruk guilty of second degree murder for the
death of Serhiy Ischenko, Fedoruk' s relative by marriage. Fedoruk appeals, arguing that ( 1) he
received ineffective assistance of counsel because his attorney failed to timely pursue a mental
health defense and did not object to alleged prosecutorial misconduct; ( 2) the prosecutor
committed flagrant and ill- intentioned misconduct in closing argument by undermining the
presumption of innocence, encouraging the jury to decide the case on grounds other than
reasoned evaluation of the evidence, expressing personal opinions as to Fedoruk' s guilt, and
presenting evidence not admitted at trial; ( 3) the trial court erroneously admitted incriminating
statements Fedoruk made to police; and ( 4) the trial court erroneously refused to instruct,the jury
on manslaughter as an included offense.
We hold that defense counsel' s failure to timely retain a mental health expert or
investigate the possibility of a mental health defense amounted to deficient performance, and
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Fedoruk has shown a reasonable probability that the deficient performance prejudiced him.
Accordingly, we reverse Fedoruk' s conviction and remand for further proceedings.
We also address the prosecutorial misconduct argument in the published portion of this
opinion and the admission of Fedoruk' s statements in the unpublished portion, because those
issues may recur on remand. Because a party' s entitlement to an included offense instruction
depends on the facts of the case, and the evidence presented may well differ on remand, we do
not decide whether the trial court erroneously declined to instruct the jury on manslaughter.
FACTS
A. Fedoruk' s History of Mental Illness
Fedoruk has a long history of serious mental illness. He suffered a head injury in a
motorcycle accident at the age of 18, was diagnosed with schizophrenia, and was twice admitted
to a psychiatric hospital. Doctors have prescribed numerous psychotropic and antipsychotic
medications, including Haldol, but Fedoruk has a history of poor compliance with the medication
regimens.
In 2002, Fedoruk' s family members reported to police that he had threatened them.
Responding officers took Fedoruk to the emergency room, where doctors prescribed
antipsychotic medication. During a 2007 competency evaluation, doctors at Western State
Hospital diagnosed Fedoruk with "[ b] ipolar 1 [ d] isorder, [ m] ost recent [ e] pisode [ m] anic, with
p] sychotic features." Clerk' s Papers ( CP) at 39. Fedoruk underwent another mental health
evaluation after the State charged him with robbery, assault, theft, and criminal trespass in 2008,
and a court ultimately found Fedoruk not guilty by reason of insanity.
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In 2010, a court found Fedoruk gravely disabled and ordered him involuntarily
committed, but soon ordered him released on a less restrictive alternative. After Fedoruk
violated the terms of the court order, he was again involuntarily committed. Fedoruk had
stopped taking his prescribed psychiatric medications and threatened to blow up Ischenko, whom
Fedoruk had accused of raping a family member. Fedoruk was again released on a less
restrictive alternative in December 2010. At the time of Ischenko' s death, Fedoruk lived at a
house with numerous relatives, including Ischenko, and received outpatient care at a local clinic.
B. Fedoruk' s Arrest and Interrogation
Two community corrections officers ( CCO) and three sheriff' s deputies went to the house
where Fedoruk and Ischenko lived on August 1, 2011, responding to calls from Fedoruk' s family
members. The family members' concerns arose out of a series of incidents in which Fedoruk
engaged in increasingly strange behavior, including angry outbursts directed at Ischenko and
others. The family' s concerns increased over the course of the morning because no one could
find Ischenko, and they made additional calls to the authorities.
When the CCOs and deputies approached the house, Fedoruk met them at the front door.
Despite repeated admonitions to remain outside and keep his hands visible, Fedoruk kept putting
his hands in his pockets and turning to go back into the house. The CCOs handcuffed Fedoruk,
stating that it was only a safety precaution and Fedoruk was not under arrest.
After questioning Fedoruk on the porch, the CCOs and a deputy began searching the
surrounding grounds. As they walked the perimeter of the property, one of Fedoruk' s brothers-
in- law, Richard Dzhumaniyazov, ran toward them from the direction of a small ravine behind the
property, yelling, " Arrest him, arrest him. Shoot, shoot." Verbatim Report of Proceedings
No. 43693 -1 - II
VRP) at 121 -22. Dzhumaniyazov led the officers into the ravine, where they found Ischenko' s
body.
Deputy Cory Robinson then placed Fedoruk in a patrol car and read him the Mirandal
advisements. When informed that anything he said could be used against him in court, Fedoruk
shouted, " Court, court, court!" VRP at 192. When told he had the right to talk to a lawyer,
Fedoruk asked, " Lawyer, why ?" VRP at 192. After Deputy Robinson confirmed that Fedoruk
understood his rights and asked if Fedoruk wished to speak, Fedoruk replied, " I don' t want to
talk to you." VRP at 193. Deputy Robinson then left Fedoruk alone in the car.
After Deputy Robinson returned, Fedoruk began speaking without prompting for about
three or four minutes. Deputy Robinson took notes and reported Fedoruk' s statement at trial as
follows:
My sister, Tatyana [ Varyvoda]. I ask -- I asked my sister -- ... What you want, a
big dick or something? And he tell my sister, I want sex. I tell just this. I tell
smoke dick, Tatyana. I just telling him it' s not -- ... tell just this. I tell smoke
dick, Tatyana. I just telling him, it' s not big deal. Christian no talk to for this for
sex every time. I tell him, look, is my sister, too. And -- ... [ m] y sister very, very
mad. She get bitchy and say, anybody call cops? I never touch him. I not touch
him, never. I go to property of Tatyana, get goats.
VRP at 907 -08.
After Deputy Robinson transported Fedoruk to the sheriff s department, Chief Civil
Deputy Marc Gilchrist and Detective Sergeant Joe Reece attempted to interview Fedoruk. They
did not readminister the Miranda advisements. Fedoruk, who remained cuffed, pointed at
Detective Reece and said, " I don' t want to talk to you." VRP at 243 -44. Detective Reece left the
I Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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room, but Deputy Gilchrist, who interpreted Fedoruk' s statement to mean that Fedoruk was
willing to speak to him, remained.
Deputy Gilchrist interviewed Fedoruk without an interpreter2 for an hour and a half.
After Fedoruk asked for an attorney, Deputy Gilchrist terminated the interview and released
Fedoruk to the custody of Officer Chris Napolitano, who detained Fedoruk for community
supervision violations.
After further investigation, the State charged Fedoruk with second degree murder under
two alternatives: intentional murder and felony murder predicated on assault.
C. Pretrial Proceedings
While awaiting trial, Fedoruk was initially uncooperative with jail staff, who frequently
used force to restrain him. After an incident in which Fedoruk " had pretty much bitten off one of
his fingers," the trial court, over Fedoruk' s objection, entered an order directing jail staff to
forcibly administer antipsychotic medications. VRP at 1; CP at 32 -34. Once medicated,
Fedoruk became " docile, respectful, pretty quiet [ and did not] cause any problems." VRP at 69.
The trial court also ordered Fedoruk to undergo a competency evaluation at Western
State Hospital. The psychologist who performed the evaluation recommended that Fedoruk
return to face prosecution, opining that
Fedoruk does have a major mental illness, but ...
is not currently experiencing
symptoms of a mental disease or defect that would interfere with his capacity to
have a factual and rational understanding of the criminal proceedings he faces or .. .
with his capacity to assist counsel in his defense.
CP at 45. Fedoruk proceeded to stand trial.
2 Fedoruk has limited English proficiency and had the assistance of a translator at all proceedings
in the trial court.
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The court held a hearing to consider the admissibility of Fedoruk' s various statements
under CrR 3. 5, taking testimony from the law enforcement witnesses who had had contact with
Fedoruk. The court ruled all of Fedoruk' s statements admissible and entered written findings
and conclusions. The written findings include ( 1) that Fedoruk " was not in custody and not in a
situation akin to custodial arrest" until after officers discovered Ischenko' s body and Deputy
Robinson placed Fedoruk in the patrol car; ( 2) that, although Fedoruk initially " invoked his right
to remain silent," he initiated the subsequent conversation with Deputy Robinson and " thus
waived his right to remain silent "; and ( 3) that by saying he did not want to talk to Detective
Reece, Fedoruk " cho[ se] which officer to talk with" and thus " initiated the conversation" with
Deputy Gilchrist. CP at 8 -9.
The State moved to limit testimony concerning Fedoruk' s mental illness on the ground
that the defense had not disclosed any expert witness qualified to give an opinion on the subject.
During the hearing, Fedoruk' s counsel stated that "[ t]he Defense has no intention of putting
forward an affir m at i v e defense of diminished capacity or arguing that ... Fedoruk was incapable
of forming intent at the time." VRP at 333. Defense counsel instead argued as follows:
Our defense is ... he didn' t do it, but I need to respond to the allegations of the
State. To the extent that their evidence calls into question his mental health at the
time, I believe it' s appropriate for the Defense to be able to argue that those
considerations and concerns need to be considered by the jury in determining
whether or not the State' s proven, specifically, that he intended to commit the crime
of murder, or whether some lesser mental state was present.
VRP at 334 -35. The State then summarized the evidence it intended to present concerning
Fedoruk' s behavior in the period leading up to Ischenko' s death as it reflected on Fedoruk' s
mental state. The trial court granted the State' s motion in part, prohibiting testimony about
No. 43693 -1 - II
diminished capacity or mental disease or defect, and ruled that the jury would not be instructed
on diminished capacity.
Five days later, on the day before jury selection began, Fedoruk' s counsel moved for a
60 -day continuance to pursue an affirmative defense of not guilty by reason of insanity. Defense
counsel stated that, although he had contemplated a mental health defense earlier in the case,
obtained some records concerning Fedoruk' s mental health history, and spoken to Fedoruk' s
family about it, "[t] here was no evidence to support or suggest those defenses" and he had " no
basis legally to pursue" them until he interviewed Fedoruk after the CrR 3. 5 hearing. VRP at
397, 404. In the motion, counsel asserted that his request was timely made immediately
following his first opportunity to talk with Fedoruk about the commencement of the trial with an
interpreter after the CrR 3. 5 hearing.
The State acknowledged that " there' s a legitimate basis to raise the defense" and that,
based on " what the State knows of the Defendant' s mental health at the time, it' s possible it
would be relevant to the trial [ and] could change the outcome." VRP at 401. The State
nonetheless opposed the motion for continuance, arguing that Fedoruk' s counsel knew the basis
for the defense all along, that it " look[ ed] like a stall tactic," and that a continuance would cause
prejudice because the State had already scheduled witnesses to testify. VRP at 400, 402 -03. The
court denied the motion, finding that the defense had " failed to lay a factual foundation for the
basis to continue [ and] that diligence has not been shown." VRP at 406.
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D. Evidence About the Night of Tschenko' s Death
One of Fedoruk' s nieces, Rimma Fedoruk, testified that on the night of Ischenko' s death,
she awoke at around 3: 00 or 4: 00 a.m. to find Fedoruk in her bedroom. Fedoruk asked her if she
had been raped, said that he had " had a vision," and then made a punching motion in the air and
said that he was " going to take care of it because he has a lot of strength right now." VRP at
518 -20, 527.
The medical examiner testified that Ischenko died from blunt force trauma, and possibly
also strangulation. A crime laboratory analyst testified that the DNA (deoxyribonucleic acid)
profile obtained from bloodstains on Fedoruk' s clothing matched Ischenko' s. DNA from
numerous bloodstains at the end of the driveway also matched Ischenko' s profile, as did DNA in
blood obtained from under Fedoruk' s fingernails.
E. Closing Argument
The prosecutor began her closing argument by stating, " It' s been a long week. You' ve
heard from 32 witnesses from the State. Sergey Fedoruk is guilty of murder two." VRP at 1771-
772. After going through the elements of the crime as charged, the prosecutor asked the jury,
What are the agreements in this case ?" VRP at 1775. She then discussed the physical evidence
presented in this context, repeatedly referring to matters on which the defense presented no
evidence as " agreements." VRP at 1776 ( " Both sides can absolutely agree ... that" Ischenko
was beaten or strangled to death); VRP at 1777 ( "Agreements. Absolute agreements. "); VRP at
1778 ( same). The prosecutor argued that, based on these agreements, "[ i] dentity is the only
issue" remaining. VRP at 1779.
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The prosecutor then turned to the theme of her argument: " Intuition is a powerful thing."
VRP at 1784. The prosecutor repeated this intuition theme several times in the course of
discussing testimony indicating that several of Fedoruk' s family members immediately suspected
Fedoruk of involvement in Ischenko' s disappearance.
The State supplemented the argument with a PowerPoint presentation. On the first slide,
under the heading " State v. Fedoruk," the words " Guilty Murder 2" appeared in large red letters.
Ex. 287. The next slide showed a photo of Ischenko, alive and smiling, under the heading
Serhiy Ischenko." Ex. 287. The third shows Ischenko' s naked, battered body on the autopsy
table under the heading " Murder 2" in large red letters, which heading also appeared on each
subsequent slide. Ex. 287.
The slides tracked the prosecutor' s argument, showing various "[ a] greements," slides 14-
16, and the theme " Intuition is a POWERFUL thing" between a bullet point saying, " Family
immediately suspects Defendant," and one saying, " Richard [ Dzhumaniyazov] finds body,
immediately says arrest him." Ex. 287. One slide listing various " agreements" shows a photo of
Ischenko' s body lying in the ravine under the heading " Murder 2." The presentation also
includes sound effects and animation, such as footprints appearing across the bottom of exhibit
287, slide 27, and concentric rings of a target, corresponding to various pieces of evidence,
appearing on the screen and culminating with an arrow pointing from the name " Sergey
Fedoruk" to the bullseye. Ex. 287.
The prosecutor concluded the presentation by repeating the second and third slides,
described above, and showing another, larger image of Ischenko' s body in the ravine under the
heading " Murder 2." Ex. 287. On the final slide, under an enlarged " Murder 2" heading, the
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word " GUILTY" flashes, written with all capitals in a 96 -point red font. Ex. 287. As these
words and images appeared on the screen, the prosecutor delivered the following summation:
Serhiy Ishchenko. He' s a brother. He was an uncle. He was a father. He
was a tidy man, a hard worker and considerate. He was beaten to death, stomped
to death, strangled to death. His body was left in a ravine and he was left for dead
by the Defendant. Murder two. The Defendant is guilty, guilty, guilty. Thank you.
VRP at 1810. Fedoruk did not object to any portion of the State' s closing argument, or to the
PowerPoint presentation.
In its closing, the defense sought to exploit the lack of direct testimony linking Fedoruk
to the killing. Fedoruk' s counsel also suggested that Ischenko' s estranged wife or
Dzhumaniyazov, the brother -in -law who first discovered Ischenko' s body, may have been
involved.
The State gave a brief rebuttal, concluding with "[ t]he Defendant is dressed in Serhiy
Ishchenko' s blood. There' s nothing more that you need. He' s guilty." VRP at 1815. The jury
returned a guilty verdict, finding by special interrogatory that Fedoruk committed intentional
murder, not felony murder predicated on assault. Fedoruk timely appeals.
ANALYSIS
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Fedoruk contends that his counsel' s failure to timely investigate a mental health defense
by consulting with a qualified expert deprived Fedoruk of the effective assistance of counsel
guaranteed by the Sixth Amendment of the United States Constitution. We agree.
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A. Standard of Review and Controlling Law
We review claims of ineffective assistance of counsel de novo as they present mixed
questions of law and fact. State v. A.N.J., 168 Wash. 2d 91, 109, 225 P.3d 956 ( 2010). A defendant
who raises an ineffective assistance claim " bears the burden of showing that ( 1) his counsel' s
performance fell below an objective standard of reasonableness and, if so, ( 2) that counsel' s poor
work prejudiced him." A.N.J., 168 Wash. 2d at 109. " The benchmark for judging any claim of
ineffectiveness must be whether counsel' s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result." Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Although "[ t] here
is a strong presumption that defense counsel' s conduct is not deficient," that presumption is
rebutted if "no conceivable legitimate tactic explain[ s] counsel' s performance." State v.
Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 ( 2004).
B. Deficient Performance in Failing To Investigate Fedoruk' s Mental Health Defense
Because "[ e] ffective assistance of counsel includes assisting the defendant in making an
informed decision as to whether to plead guilty or to proceed to trial," an attorney' s failure to
adequately investigate the merits of the State' s case and possible defenses may constitute
deficient performance. A.N.J., 168 Wash. 2d at 111 ( citing State v. S.M., 100 Wash. App. 401, 413,
996 P.2d 1111 ( 2000)). While
t] he degree and extent of investigation required will vary depending upon the
issues and facts of each case, ... at the very least, counsel must reasonably evaluate
the evidence against the accused and the likelihood of a conviction if the case
proceeds to trial.
A.N.J., 168 Wash. 2d at 111.
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We will not generally hold deficient a defense attorney' s " strategic choices made after
thorough investigation of law and facts relevant to plausible options." Strickland, 466 U.S. at
690 -91. Where an attorney makes strategic choices " after less than complete investigation,"
however, a reviewing court will consider them reasonable only " to the extent that reasonable
professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690 -91.
Thus, " counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. With respect to
the need for expert testimony, our Supreme Court has adopted the approach set forth by the
Ninth Circuit Court of Appeals:
Counsel have an obligation to conduct an investigation which will allow a
determination of what sort of experts to consult. Once that determination has been
made, counsel must present those experts with information relevant to the
conclusion of the expert."
In re Pers. Restraint of Brett, 142 Wash. 2d 868, 881, 16 P.3d 601 ( 2001) ( quoting Caro v.
Calderon, 165 F.3d 1223, 1226 ( 9th Cir. 1999)).
The State correctly points out that the record on appeal does not make entirely clear what
investigation Fedoruk' s counsel may have conducted. Counsel' s statements at the hearing on the
motion to continue, however, establish that the defense had not retained a mental health expert or
had Fedoruk' s mental condition as of the date of the crime evaluated by a qualified mental health
professional. Initially, defense counsel described the basis for the continuance motion as
follows: " an issue has arisen that creates a requirement ... to pursue a defense theory not
previously pursued." VRP at 395 ( emphasis added). Counsel further stated that "[ t] here was no
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evidence to support or suggest those defenses prior to" interviewing Fedoruk after the CrR 3. 5
hearing, and that " we have obtained other prior history that would go in aiding an evaluation at
this point." VRP at 398, 404. Under the circumstance presented here, we consider this record
sufficient to warrant our review.
The extensive history of mental illness outlined above, all of which was available to the
defense from the beginning of the case, indicates that the decision not to seek to retain an expert
to evaluate Fedoruk until the day before jury selection fell below an objective standard of
reasonableness. Even if Fedoruk told counsel that he was not involved in Ischenko' s death and
did not wish to pursue a mental health defense, counsel could not have assisted him in making an
informed decision about the consequences of going to trial on a theory of general denial without
first getting an expert opinion regarding Fedoruk' s mental health at the time of the killing. In
light of the State' s strong circumstantial evidence against Fedoruk, the failure to obtain an
independent expert evaluation appears even less reasonable.
The State relies on In re Personal Restraint ofDavis, 152 Wash. 2d 647, 721 -32, 101 P.3d 1
2004), in which our Supreme Court rejected a petitioner' s claim that counsel' s failure to present
a mental health defense during the guilt phase of a capital murder trial deprived him of effective
assistance. Davis is of little instruction here, however, because in that case defense counsel
retained five mental health experts prior to trial. 152 Wash. 2d at 723.
Similarly, the State cites In re Personal Restraint ofElmore, 162 Wash. 2d 236, 258 -59, 172
P.3d 335 ( 2007), which held defense counsel' s decision not to present mitigating mental health
evidence at sentencing reasonable. Elmore, however, is also of little instruction because counsel
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in that case had retained an expert prior to trial and fully investigated the defendant' s mental
health situation. Elmore, 162 Wash. 2d at 245 -46, 258.
The State also relies on Brett. In that case, the court found a defense attorney' s
performance fell below the standard of reasonableness based on several deficiencies, including
failure to investigate a mental health defense:
W] hen counsel knew or had reason to know of a mental defect or illness affecting
their client in a possible death penalty case, counsel could and should have: ( 1)
promptly sought the appointment of cocounsel; ( 2) presented a mitigation package
to the prosecutor before a death penalty notice was filed; ( 3) promptly investigated
relevant mental health issues; ( 4) sought a timely appointment of investigators; ( 5)
sought a timely appointment of qualified mental health experts; and ( 6) adequately
prepared for the penalty phase by having relevant mental health issues fully
assessed and by retaining, if necessary, qualified mental health experts to testify
accordingly.
142 Wash. 2d at 882. The court specified, however, that
w]hile the failure to perform one of these actions alone is insufficient to establish
ineffective assistance of counsel, the failure to perform the combination of these
actions establishes that defense counsel' s actions in Brett' s trial were not reasonable
under the circumstances of the case.
142 Wash. 2d at 882 -83 ( emphasis omitted). This suggests that in Brett' s context the failure to
investigate the mental health defense does not alone suffice to establish deficient performance.
Certain of the other deficiencies the Brett court identified, however, also appear to be
present here. Specifically, Fedoruk' s counsel also did not seek " timely appointment of qualified
mental health experts," nor " adequately prepare[ d] ... by retaining, if necessary, qualified
mental health experts to testify." 142 Wash. 2d at 882. Other deficiencies identified by the Brett
court have no application here because this case was not bifurcated into guilt and penalty phases.
The Brett court summarized the basis for its holding as follows:
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Counsel did not conduct a reasonable investigation into Brett' s medical conditions
and the possible mental effects of such severe conditions. Thus, Brett' s counsel
was unable to make informed decisions about how to best represent him in both the
guilt and penalty phases of the trial.
142 Wash. 2d at 883. Viewed consistently with Brett, the failure to investigate a mental health
defense for Fedoruk fell below an objectively reasonable standard.
C. Prejudice
We now turn to the question of whether the failure to investigate prejudiced Fedoruk. To
merit reversal based on an ineffective assistance claim, a defendant has the burden to show a
reasonable probability that, but for the deficient performance, the result of the proceeding would
have been different. State v. Thomas, 109 Wash. 2d 222, 226, 743 P.2d 816 ( 1987). Under this
reasonable probability" standard, the defendant " need not show that counsel' s deficient conduct
more likely than not altered the outcome in the case," but must demonstrate a probability of a
more favorable result " sufficient to undermine confidence in the outcome" actually obtained.
Strickland, 466 U.S. at 693 -94. The defendant must make this showing " based on the record
developed in the trial court." State v. McFarland, 127 Wash. 2d 322, 337, 899 P.2d 1251 ( 1995).
The State contends that Fedoruk does not meet these standards because he cites to
nothing in the record showing that any expert would be able to testify that he was legally insane
or lacked the capacity to form the necessary intent. The State rests this contention on State v.
Turner, 143 Wash. 2d 715, 730, 23 P.3d 499 ( 2001), in which our Supreme Court rejected a
defendant' s argument that his attorney' s failure to present expert testimony in support of a
diminished capacity defense denied him the effective assistance of counsel. The Turner court
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reasoned that " Turner has failed to show that his counsel' s performance was deficient" because
i] t cannot be determined from the record on appeal that any expert would have testified that
Turner lacked the ability to form the specific intent required to commit the crimes with which he
was charged." 143 Wash. 2d at 730.
The defendant in Turner was evaluated at Eastern State Hospital and found legally sane
at the time he committed his crimes. 143 Wash. 2d at 721. Here, in contrast, Fedoruk was only
evaluated for competency to stand trial, not for legal sanity at the time of the killing. The
examining psychologist expressly opined that " Fedoruk does have a major mental illness, but he
is not currently experiencing symptoms of a mental disease or defect that would" render him
incompetent to stand trial. CP at 45 ( emphasis added). The facts underlying Turner are distant
enough from those presented here to rob it of any precedential force in this appeal.
On the other hand, evidence in the record, discussed above, shows that Fedoruk had
already been found not guilty by reason of insanity of a number of felony charges, based on
evaluations from two qualified professionals. His history of serious mental illness is well
documented, as set out in the Facts, above. His actions on the night of the killing were bizarre
under any yardstick, as shown by testimony described above. Furthermore, the State conceded
in the trial court that Fedoruk had " a legitimate basis to raise the defense" and that " it could
change the outcome of the trial." VRP at 401. This evidence shows a reasonable likelihood that
the outcome of the trial would have differed had Fedoruk been able to present an insanity or
diminished capacity defense. Although not conclusive, this evidence is sufficient to
demonstrate a probability of a more favorable result " sufficient to undermine confidence in the
outcome" actually obtained. Strickland, 466 U.S. at 694. With that, Fedoruk was prejudiced by
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the failure to investigate a mental health defense. Accordingly, Fedoruk received ineffective
assistance of counsel, and we reverse his conviction. 3
II. PROSECUTORIAL MISCONDUCT
Fedoruk contends that the prosecutor committed flagrant and ill-intentioned misconduct
in closing argument, misconduct that merits review despite defense counsel' s failure to object.
Specifically, Fedoruk claims that the prosecutor ( 1) undermined the presumption of innocence by
telling the jury that Fedoruk' s failure to rebut portions of the State' s evidence amounted to
agreement" with the State' s case; ( 2) encouraged the jury to decide the case based on irrational
considerations rather than probative evidence and sound reason; ( 3) showed the jury evidence
not admitted at trial; and ( 4) invaded the province of the jury by expressing personal opinions on
questions of fact.
We agree that some of the prosecutor' s actions constituted misconduct. However,
because we reverse this case on other grounds, we do not address whether Fedoruk waived this
challenge or whether the prosecutor' s conduct prejudiced him. We address the prosecutorial
misconduct because it may arise on remand.
A. Controlling Law
To prevail on a prosecutorial misconduct claim, a defendant must show that the
prosecutor' s conduct was both improper and prejudicial " in the context of the record and all of
3 Fedoruk also argues that his counsel unreasonably failed to object to the State' s closing
argument. Because we reverse based on ineffective assistance of counsel for failing to
investigate a mental health defense, we need not address this argument. For the same reason, we
need not address Fedoruk' s argument that the trial court erred in denying his motion for a
continuance.
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the circumstances of the trial." In re Pers. Restraint of Glasmann, 175 Wash. 2d 696, 704, 286
P.3d 673 ( 2012). To establish prejudice, the defendant must " show a substantial likelihood that
the misconduct affected the jury verdict." Glasmann, 175 Wash. 2d at 704. A defendant who
failed to object at trial must also establish " that the misconduct was so flagrant and ill intentioned
that an instruction would not have cured the prejudice." Glasmann, 175 Wash. 2d at 704.
A prosecutor who "` throw[ s] the prestige of h[ er] public office ... and the expression of
h[ er] own belief of guilt into the scales against the accused ' deprives the defendant of the
constitutional right to a fair trial. Glasmann, 175 Wash. 2d at 703 -04 ( quoting State v. Monday,
171 Wash. 2d 667, 677, 257 P.3d 551 ( 2011)) ( alteration in original) ( internal quotation marks
omitted). A prosecutor enjoys " wide latitude to argue reasonable inferences from the evidence,"
but " must ` seek convictions based only on probative evidence and sound reason. "' Glasmann,
175 Wash. 2d at 704 ( quoting State v. Casteneda- Perez, 61 Wash. App. 354, 363, 810 P.2d 74
1991)). A prosecutor, furthermore, ' should not use arguments calculated to inflame the
passions or prejudices of the jury.'" Glasmann, 175 Wash. 2d at 704 ( quoting AM. BAR ASS' N,
STANDARDS FOR CRIMINAL JUSTICE std. 3- 5. 8( c) ( 2d ed. 1980)). Although a prosecutor may
point out a lack of evidentiary support for the defendant' s theory of the case" or " state that
certain testimony is not denied, without reference to who could have denied it," State v. Sells,
166 Wn. App. 918, 930, 271 P.3d 952 ( 2012), review denied, 176 Wash. 2d 1001 ( 2013), the .
general rule is that the State " cannot comment on the lack of defense evidence because the
defense has no duty to present evidence." State v. Cheatham, 150 Wash. 2d 626, 652, 81 P.3d 830
2003).
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No. 43693 -1 - II
In Glasmann, the prosecutor used a PowerPoint presentation featuring images taken from
a security camera video, pictures of the victim' s injuries, and the defendant' s booking
photograph, with added commentary and text taken from trial testimony or witnesses' recorded
statements. 175 Wash. 2d at 701. A series of slides repeatedly featured the booking photo
superimposed with the word " GUILTY" in red letters. Glasmann, 175 Wash. 2d at 702. As the
slides appeared on the screen, the prosecutor delivered the following summation:
You' ve been provided with a number of lesser crimes if you believe the
defendant is not guilty of the crimes for which the State has charged him, but the
evidence in this case proves overwhelmingly that he is guilty as charged, and that' s
what the State asks you to return in this case: Guilty of assault in the first degree;
guilty of attempted robbery in the first degree; guilty of kidnapping in the first
degree; and guilty of obstructing a police officer. Hold him accountable for what
he did on October 23rd, 2004, by finding him guilty as charged. Thank you."
Glasmann, 175 Wash. 2d at 702. The defense did not object. Glasmann, 175 Wash. 2d at 702.
In holding that the prosecutor committed flagrant and ill-intentioned misconduct, the
Glasmann court relied on the fact that "[ o] ur courts have repeatedly and unequivocally
denounced the type of conduct that occurred in this case." 175 Wash. 2d at 704. First, the
Glasmann court noted the "' long- standing rule [that] consideration of any material by a jury not
properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that
the defendant may have been prejudiced. "' 175 Wash. 2d at 705 ( quoting State v. Pete, 152 Wash. 2d
546, 555 n. 4, 98 P.3d 803 ( 2004)) ( internal quotation marks omitted). In rejecting the State' s
argument that it had merely combined properly admitted evidence with argument based on the
law and facts, the Glasmann court held that " the prosecutor' s modification of photographs by
adding captions was the equivalent of unadmitted evidence," and " a prosecutor must be held to
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No. 43693 -1 - II
know that it is improper to present evidence that has been deliberately altered in order to
influence the jury' s deliberations." 175 Wash. 2d at 706.
The Glasmann court next pointed out that " a prosecutor cannot use his or her position of
power and prestige to sway the jury" and quoted at length from the commentary to the American
Bar Association, Standards for Criminal Justice:
The prosecutor' s argument is likely to have significant persuasive force
with jury. Accordingly, the scope of argument must be consistent with the
the
evidence and marked by the fairness that should characterize all of the prosecutor' s
conduct. Prosecutorial conduct in argument is a matter of special concern because
of the possibility that the jury will give special weight to the prosecutor' s
arguments, not only because of the prestige associated with the prosecutor' s office
but also because of the fact -finding facilities presumably available to the office."
175 Wash. 2d at 706 ( quoting commentary to std. 3 - 5. 8). The court went on to discuss the " many
cases warn[ ing] of the need for a prosecutor to avoid expressing a personal opinion of guilt," and
held that "[ b] y expressing his personal opinion of.Glasmann' s guilt through both his slide show
and his closing arguments, the prosecutor engaged in misconduct." 175 Wash. 2d at 706 -07.
B. Expressions of Personal Opinion and Presentation of Unadmitted Evidence
Here, the trial court admitted no photos of Ischenko' s body with " Murder 2" appearing in
large red letters above them. Yet the State presented four such images to the jury during closing
argument. As in Glasmann, " the multiple altered photographs here may well have affected the
jurors' feelings about the need to strictly observe legal principles and the care [ they] must take in
determining [ the defendant' s] guilt." 175 Wash. 2d at 706.
The State correctly points out that the presentation here differs in some respects from that
in Glasmann. With the exception of the red " Murder 2" heading that appeared over all but two
of the slides, the presentation here did not combine images from the evidence with testimony and
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No. 43693 -1 - II
argument. In some ways, however, the presentation here is more egregious: although the
prosecutor here did not superimpose the word " guilty" over a picture of Fedoruk, she did flatly
state that "[ t] he Defendant is guilty, guilty, guilty" while flashing the word " GUILTY" in front
of the jury in large, red, capital letters on a screen bearing the heading " Murder 2." VRP at
1810; Ex. 287, slide 35. The prosecutor in Glasmann at least couched his assertions of guilt in
terms of what the evidence showed and the verdict the State asked jurors to return.
Here, the prosecutor did not make the challenged statements only in rebuttal as a fair
response to defense counsel' s arguments, but began and ended her prepared remarks with direct
assertions of Fedoruk' s guilt. The assertion of guilt that concluded her prepared remarks
followed not a summary of the evidence, but a discussion of Ischenko' s virtues, inviting the jury
to decide the case based on sympathy. The prosecutor here did not couch her assertions of guilt
in terms of the evidence in the case, and she reinforced those assertions with inflammatory
images similar to those held improper in Glasmann. The prosecutor conveyed to the jury her
personal opinion that Fedoruk was guilty. This argument was improper.
C. Appeal to Intuition
In addition, the prosecutor' s argument suggested that the jurors should take the fact that
Fedoruk' s family members suspected Fedoruk based on their " intuition" as evidence of his guilt,
going so far as to state that "[ t]he whole family doesn' t buy [ Fedoruk' s story] because their
intuition has told them the truth." VRP at 1801. This argument encouraged jurors to decide the
case based on considerations other than " probative evidence and sound reason." Casteneda-
Perez, 61 Wn. App. at 363. Further, the prosecutor here did not make these arguments in
rebuttal as a fair response to some related argument by the defense. Instead, this appeal to the
21
No. 43693 -1 - II
J
jury to infer guilt from others' intuitions served as the theme of her prepared remarks. Therefore,
this argument was improper.
D. Characterization of Fedoruk' s Failure to Rebut the State' s Evidence as " Agreement"
In closing, the prosecutor also repeatedly referred to matters on which the defense
presented no evidence as " agreements" between both sides. VRP at 1776. This characterization
plainly conveyed that Fedoruk had made an affirmative assertion about a matter by presenting no
evidence on it. In doing so, the prosecutor presented a false depiction of what Fedoruk said and
undermined the presumption of innocence by transmuting the defendant' s silence into evidence
against him. The State points out that the prosecutor " couched the term `agreement' in what was
the undisputed and uncontroverted evidence." Br. of Resp' t at 65. Although true, at least in the
first instance that the prosecutor used the word, this falls far short of establishing that the
remarks did not effectively comment on Fedoruk' s failure to present evidence. As Fedoruk
points out, the State argued based on the purported agreements that only one issue remained:
identity. Under Cheatham, 150 Wash. 2d at 652, the prosecutor effectively commented on the lack
of defense evidence by arguing that because he did not present contrary evidence, Fedoruk
agreed with the State' s position. This, also, was improper.
In legal doctrines, some distinctions seem cut with a jeweller' s eye. Others seem more a
work of watercolor, with one shade blurred into another. Although the line between zealous
advocacy and improper argument may seem drawn in part in watercolor, the conduct at issue
here fell outside its blurred zones. The prosecutor' s actions described above constituted
misconduct.
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No. 43693 -1 - II
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2. 06. 040, it is so ordered.
III. THE TRIAL COURT' S REFUSAL To INSTRUCT THE JURY ON
MANSLAUGHTER AS A LESSER INCLUDED OFFENSE
Fedoruk argues that the trial court violated his statutory and constitutional rights to have
the jury consider first degree manslaughter as a lesser included offense of second degree
intentional murder. Under State v. Workman, 90 Wash. 2d 443, 447 -49, 584 P.2d 382 ( 1978), the
resolution of that challenge depends in part on the evidence introduced. Because the evidence
introduced on remand may differ from that in the record before us, we decline to address this
issue.
IV. DENIAL OF THE DEFENSE MOTION To SUPPRESS FEDORUK' S
STATEMENTS TO LAW ENFORCEMENT
Fedoruk argues that the trial court erred in admitting various statements he made to law
enforcement officials for one or more of three different reasons: ( 1) he did not make the
statements voluntarily; ( 2) he made the statements under custodial interrogation without having
been advised of his Miranda rights; and ( 3) the officials failed to scrupulously honor Fedoruk' s
initial invocation of his right to remain silent. Fedoruk assigns error to 20 of the findings and
conclusions the trial court entered following the CrR 3. 5 hearing. Because we reverse Fedoruk' s
conviction for the reasons set out above, it is not necessary to decide whether any error in
admitting Fedoruk' s statements also warrants reversal. However, because the issues may arise
on retrial, we address them in the interest ofjudicial economy.
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No. 43693- 1- 11
A. Voluntariness
In reviewing a due process claim that a suspect made statements to police involuntarily,
we consider whether, under the totality of the circumstances, including the suspect' s powers of
resistance and the pressure brought to bear by the interrogators, the "` defendant' s will was
overborne. "' Dickerson v. United States, 530 U.S. 428, 433 -34, 120 S. Ct. 2326, 147 L. Ed. 2d
405 ( 2000) ( quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 -26, 93 S. Ct. 2041, 36 L. Ed.
2d 854 ( 1973)). The voluntariness inquiry is necessarily fact -specific. Gallegos v. Colorado,
370 U.S. 49, 52, 82 S. Ct. 1209, 8 L. Ed. 2d 325 ( 1962). " The length of the questioning, the use
of fear to break a suspect, [ and] the youth of the accused are illustrative of the circumstances on
which cases of this kind turn." Gallegos, 370 U.S. at 52 ( citations omitted). Also relevant is
the failure of police to advise the defendant of his rights to remain silent and to have counsel
present during custodial interrogation." Withrow v. Williams, 507 U.S. 680, 693 -94, 113 S. Ct.
1745, 123 L. Ed. 2d 407 ( 1993) ( citations omitted).
We reject Fedoruk' s due process argument because, other than the acts involved in
detaining him, Fedoruk does not allege that the authorities applied any pressure whatsoever to
get him to answer their questions. In essence, he argues that, given his mental illness, these acts
alone sufficed to overbear his will. However, he cites no authority for such a proposition. In
State v. Aten, 130 Wash. 2d 640, 665, 927 P.2d 210 ( 1996), our Supreme Court rejected a similar
claim:
although Respondent was diagnosed as suffering from grief and depression, there
is no evidence that officers deliberately exploited her mental condition to obtain
her statement or acted in a way that would overcome her will to resist giving a
statement.
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No. 43693 -1 - II
To illustrate the kind of showing necessary to establish that statements were involuntary,
in a recent federal case involving a 17- year -old suspect, Doody v. Ryan, 649 F.3d 986 ( 9th Cir.
2011), the court held a confession involuntary where teams of police officers interrogated the
boy in shifts for over 12 hours. Fedoruk does not come close to making such a showing here.
The trial court did not err in concluding that Fedoruk made his statements to police voluntarily.
B. Miranda Violations
We consider unchallenged findings of fact entered by a trial court after a CrR3. 5 hearing,
as well as findings supported by substantial evidence in the record, verities on appeal. State v.
Lorenz, 152 Wash. 2d 22, 36, 93 P.3d 133 ( 2004). In evaluating a claim that a defendant' s
statements are inadmissible under Miranda and its progeny, however, we review de novo a trial
court' s rulings that a suspect was or was not in custody, invoked the right to remain silent,
initiated further conversation with police, or has knowingly and intelligently waived his Miranda
rights. See In re Pers. Restraint of Cross, 180 Wash. 2d 664, 680 -81, 327 P.3d 660 ( 2014)
invocation and custody present mixed questions of law and fact subject to de novo review);
State v. Daniels, 160 Wash. 2d 256, 261, 156 P.3d 905 ( 2007) ( Miranda issues are questions of
law); Terrovona v. Kincheloe, 852 F.2d 424, 428 ( 9th Cir. 1988) ( voluntariness of waiver of the
right to remain silent " is essentially a legal judgment "). We are not bound by a trial court' s
mischaracterization of a legal conclusion as a finding of fact. State v. Ross, 141 Wash. 2d 315, 309-
10, 4 P.3d 130 ( 2000).
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No. 43693 - 1 - II
1. Custodial Interrogation While on the Porch
Fedoruk argues that the trial court erred in admitting statements he made while on the
porch at his home prior to being advised of his Miranda rights because he made them under
custodial interrogation. We agree.
A person questioned by law enforcement officers after being " taken into custody or
otherwise deprived of his freedom of action in any significant way" must first "be warned that he
has a right to remain silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney." Miranda, 384 U.S. at 444. Failure to
give these advisements renders any statements elicited inadmissible for most purposes in a
criminal trial. Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293
1994). The requirement that police administer Miranda advisements does not attach, however,
until " there has been such a restriction on a person' s freedom as to render him in custody."
Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 ( 1977) ( internal
quotation marks omitted).
Whether someone is in custody depends on all of the circumstances surrounding the
interrogation, but " the ultimate inquiry is simply whether there [ was] a ` formal arrest or restraint
on freedom of movement' of the degree associated with a formal arrest." California v. Beheler,
463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 ( 1983) ( quoting Mathiason, 429 U.S. at
495); accord Daniels, 160 Wash. 2d at 266. In determining whether a suspect is in custody, courts
conduct an objective inquiry:
Two discrete inquiries are essential to the determination: first, what were the
circumstances surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she was at liberty to
terminate the interrogation and leave. Once the scene is set and the players' lines
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No. 43693 - 1 - II
and actions are reconstructed, the court must apply an objective test to resolve the
ultimate inquiry:.was there a formal arrest or restraint on freedom of movement of
the degree associated with formal arrest."
J.D.B. v. North Carolina, - -- U. S. - - -, 131 S. Ct. 2394, 2402, 180 L. Ed. 2d 310 ( 2011) ( quoting
Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 ( 1995)) ( internal
quotation marks omitted) ( footnote omitted). Thus, a reviewing court considers the situation
from the point of view of a reasonable person in the suspect' s position, but does not consider the
subjective beliefs or intentions of either the suspect or the police.
Here, five armed and uniformed officers confronted Fedoruk at his house. They
repeatedly told him to keep his hands out of his pockets and prohibited him from going back
inside the house. Before asking Fedoruk about Ischenko' s car, the officers handcuffed him and
ordered him to sit on the porch. At this point, no reasonable person could have felt free to
terminate the questioning and leave: indeed, Fedoruk apparently tried to do so a number of times
but was ordered to stay put. See Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311
1969) ( suspect surrounded by four officers in his bedroom was in custody).
We hold that, once handcuffed and ordered to sit on the porch, Fedoruk was in custody
for purposes of Miranda. The trial court erred in concluding that Fedoruk was not in custody
until placed in the patrol car and in admitting statements Fedoruk made after being cuffed but
before Deputy Robinson administered the Miranda warnings.
2. Fedoruk' s Unprompted Statements to Robinson in the Patrol Car
Fedoruk argues that the trial court also erred in admitting the statements he made to
Deputy Robinson in the patrol car after being read the Miranda warnings because police
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No. 43693 -1 - II
continued to interrogate him after he unequivocally invoked the right to remain silent. We agree
with the trial court that Fedoruk unequivocally invoked his right to remain silent when he told
Deputy Robinson, " I don' t want to talk to you." VRP at 193. Because Fedoruk' s statements to
Deputy Robinson were not the product of interrogation, however, the prophylactic rules laid
down in Miranda do not apply, and Fedoruk' s invocation of the right to remain silent thus has no
bearing on the statements' admissibility.
The trial court found that Fedoruk' s statements to Deputy Robinson were " spontaneous"
and concerned " the specific considerations of the case," concluding that Fedoruk " initiated this
conversation and thus waived his right to remain silent." CP at 9. Whether Fedoruk validly
waived his rights, however, is not the proper inquiry.
The United States Supreme Court has specified that
the special procedural safeguards outlined in Miranda are required not where a
suspect is simply taken into custody, but rather where a suspect in custody is
subjected to interrogation ... the Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or its functional
equivalent {, t] hat is ... any words or actions on the part of the police ( other than
those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response.
Rhode Island v. Innis, 446 U.S. 291, 300 -01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 ( 1980). Thus, in
State v. McIntyre, we held admissible McIntyre' s spontaneous in- custody statements, made prior
to receiving the Miranda warnings, on the grounds that the statement was not prompted by
questioning or other conduct equivalent to interrogation, and the actions of the police were
merely those normally attendant to arrest. 39 Wash. App. 1, 6, 691 P.2d 587 ( 1984).
By merely returning to the patrol car to retrieve some papers, Deputy Robinson did not
do anything that he should have known was reasonably likely to elicit an incriminating response:
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No. 43693 - 1 - II
Deputy Robinson' s conduct was merely that normally attendant to arrest and custody. Fedoruk' s
statement in the patrol car was thus not the product of interrogation, and the Miranda safeguards
do not apply. The trial court did not err in admitting Fedoruk' s statements to Deputy Robinson
in the patrol car.
3. Fedoruk' s Statements to Gilchrist
Even with the conclusion that Fedoruk' s unprompted statements in the patrol car were
admissible, we cannot accept the trial court' s conclusion that Fedoruk' s statement to Detective
Reece, " I don' t want to talk to you," VRP at 242 -43, qualified as a knowing and intelligent
waiver of the right to remain silent with respect to Deputy Gilchrist.
The admissibility of statements obtained by interrogation after a person in custody has
invoked his or her Miranda rights depends on whether the authorities "` scrupulously honored '
the suspect' s right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321,
46 L. Ed. 2d 313 ( 1975) ( quoting Miranda, 384 U.S. at 479). Police may subject a suspect who
invoked the right to counsel to further interrogation if (1) the suspect subsequently initiated
further communication with officers, and ( 2) the suspect knowingly and intelligently waived the
previously asserted right. Oregon v. Bradshaw, 462 U.S. 1039, 1044, 103 S. Ct. 2830, 77 L. Ed.
2d 405 ( 1983) ( holding that " even if a conversation [ following invocation of the right to counsel]
is initiated by the accused, where reinterrogation follows, the burden remains upon the
prosecution to show that subsequent events indicated a waiver "); Aten, 130 Wash. 2d at 666. The
analysis is generally the same for the right to remain silent. See Berghuis v. Thompkins, 560 U.S.
370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 ( 2010).
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No. 43693 -1 - II
Whether a suspect, after invoking his Miranda rights, " initiate[ d]" further discussion
depends on whether the suspect' s subsequent statement " evinced a willingness and a desire for a
generalized discussion about the investigation," or was " merely a necessary inquiry arising out of
the incidents of the custodial relationship." Bradshaw, 462 U.S. at 1045 -46. Whether a
purported waiver of the right to counsel or the right to remain silent is valid depends on the
totality of the circumstances, "` including the necessary fact that the accused, not the police,
reopened the dialogue with the authorities. ' Bradshaw, 462 U.S. at 1046 ( quoting Edwards v.
Arizona, 451 U.S. 477, 486 n. 9, 101 S. Ct. 1880, 68 L. Ed. 2d 378 ( 1981)).
A] suspect may, if he chooses, selectively waive his Fifth Amendment rights by
indicating that he will respond to some questions, but not to others." United States v. Lorenzo,
570 F.2d 294, 297 -98 ( 9th Cir. 1978). A suspect' s waiver of Miranda rights, furthermore, " is not
irrevocable[:] Miranda and its progeny allow an interrogee effectively to withdraw his waiver
and fully assert his Fifth Amendment rights in the midst of the interrogation process." Lorenzo,
570 F.2d at 297.
Deputy Gilchrist admitted that, when he interpreted the sentence " I don' t want to talk to
you" as an expression of Fedoruk' s willingness to speak to him in Detective Reece' s absence, he
was under the erroneous understanding that Fedoruk had previously expressed to Deputy
Robinson a willingness to speak to police. VRP at 195 - 197. As discussed, the trial court
correctly determined that the same words, when previously spoken to Deputy Robinson,
constituted an unequivocal invocation of Fedoruk' s right to remain silent. The difference
between the two situations is only that two officers were present in the second instance, and
Fedoruk allegedly pointed at one, Detective Reece, as he uttered the words. The record makes
30
No. 43693 -1 - II
clear, however, that Detective Reece was the lead investigator in charge of the interrogation and
that Fedoruk' s hands were cuffed together. Thus, Fedoruk was only capable of pointing at one
officer at a time, and pointed to the officer in charge of the interrogation. We hold that, by
interrogating Fedoruk for an hour and a half without further clarification, Deputy Gilchrist failed
to " scrupulously honor[]" Fedoruk' s invocation of his right to remain silent. Miranda, .384 U :S.
at 479. The trial court erred in admitting the statements Fedoruk made to Deputy Gilchrist.
CONCLUSION
We hold that defense counsel' s failure to timely retain a mental health expert or
investigate the possibility of a mental health defense amounted to deficient performance and that
Fedoruk has shown a reasonable probability that the deficient performance prejudiced him.
Accordingly, we reverse Fedoruk' s conviction and remand for further proceedings consistent
with this opinion.
A,cX
We concur:
MAxn
L
31