State v. Everybodytalksabout, 126 P.3d 87, 131 Wash.App. 227 (Wash.App.Div.1 01/17/2006)

[1] IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE


[2] No. 53570-6-I


[3] 126 P.3d 87, 131 Wash.App. 227, 2006.WA


[4] January 17, 2006


[5] STATE OF WASHINGTON, RESPONDENT,
v.
DARRELL EVERYBODYTALKSABOUT, APPELLANT.


[6] SOURCE OF APPEAL: Appeal from Superior Court of King County Docket No: 97-1-01122-8 Judgment or order under review Date filed: 12/19/2003 Judge signing: Hon. Paris K Kallas.


[7] Counsel OF Record:


[8] Counsel for Appellant(s) Washington Appellate Project Attorney at Law 1511 Third Avenue Suite 701 Seattle, WA 98101


[9] Everybodytalksabout(info Only) (Appearing Pro Se) Cbcc Doc 256197 1830 Eagle Crest Wy Clallam Bay, WA 98326-9723


[10] Susan F Wilk Washington Appellate Project 1511 3rd Ave Ste 701 Seattle, WA 98101-3635


[11] Counsel for Respondent(s) Deborah A. Dwyer King Co Pros Ofc/ Appellate Unit 516 3rd Ave Ste W554 Seattle, WA 98104-2362


[12] Prosecuting Atty King County King Co Pros/App Unit Supervisor W554 King County Courthouse 516 Third Avenue Seattle, WA 98104


[13] The opinion of the court was delivered by: Baker, J.


[14] JUDGES: Concurring: C. Kenneth Grosse, Susan Agid.


[15] OPINION PUBLISHED IN PART


[16] Darrell Everybodytalksabout appeals his conviction for first degree murder. He argues, among other things, that his Fifth Amendment protection against self-incrimination and Sixth Amendment right to counsel were contravened when, without providing Miranda*fn1 warnings, a Department of Corrections (DOC) employee interviewed him after his first conviction for purposes of preparing a presentence report, and his statements were used against him in a subsequent trial following a successful appeal. We hold that the DOC official did not interrogate Everybodytalksabout within the meaning of Miranda or deliberately elicit incriminating statements from him in violation of his right to counsel. We affirm.


[17] I.


[18] In February 1996, Rigel Jones was stabbed to death in the Pioneer Square area of Seattle. Darrell Everybodytalksabout and Phillip Lopez were charged jointly with first degree murder for Jones' death. The State argued that Everybodytalksabout and Lopez killed Jones while in the course of robbing him.


[19] Everybodytalksabout's first trial ended in a mistrial because, after the State rested its case, the court discovered that the State's principal witness had committed perjury.*fn2 Everybodytalksabout's second trial ended in a conviction. But our Supreme Court reversed his conviction after concluding that the superior court committed reversible error by admitting evidence that was inadmissible under ER 404(b).*fn3


[20] This appeal stems from Everybodytalksabout's third trial. Early in the proceedings, Everybodytalksabout moved to dismiss based on an alleged discovery violation and destruction of evidence. The court denied his motion.


[21] Everybodytalksabout did not testify at trial, but several witnesses related statements allegedly made by him. Diane Navicky, a DOC employee, testified to statements Everybodytalksabout made during a presentence interview after his second trial, but before his conviction was reversed on appeal. The purpose of the interview was to gather unbiased information to present to the sentencing judge. At the end of the interview, Navicky asked Everybodytalksabout to tell her his version of events. Everybodytalksabout said that he participated in the robbery, but did not kill Jones.


[22] Vincent Rain, Everybodytalksabout's former cellmate, testified that Everybodytalksabout told him that he and Lopez pretended to be selling drugs in order to rob a guy. He said that Everybodytalksabout got into an argument with the man and, when they began wrestling, Lopez stabbed the victim. In exchange for his testimony, the State assisted Rain by transferring him to a Colorado prison.


[23] Everybodytalksabout moved for a mistrial, arguing that he was denied a fair trial because Detective Eugene Ramirez, a witness for the State, violated an in limine ruling. Yolonda Lopez, Phillip Lopez's former girlfriend, was called to testify about the crime. After the first day of her testimony, Ramirez drove Yolonda home. During the drive, Ramirez told Yolonda that he was displeased with her testimony. This conversation occurred in violation of an in limine ruling precluding witnesses from discussing their testimony. The court allowed the parties to question Yolanda and Ramirez about the incident, but ultimately denied Everybodytalksabout's motion for a mistrial.


[24] A jury found Everybodytalksabout guilty of first degree murder while armed with a deadly weapon.


[25] II.


[26] Everybodytalksabout argues that his Fifth Amendment right against self-incrimination was contravened when Navicky interviewed him without providing Miranda warnings and his statements were later used against him at trial.*fn4


[27] The Fifth Amendment protects a defendant against self-incrimination. Generally, a defendant must invoke his Fifth Amendment protections in order for them to apply.*fn5 But there is an exception to this rule when a state agent conducts a custodial interrogation without providing Miranda warnings.*fn6


[28] 'Miranda warnings were developed to protect a defendant's constitutional right not to make incriminating confessions or admissions to police while in the coercive environment of police custody.'*fn7 A suspect must receive a Miranda warning when he endures a custodial interrogation by a state agent.*fn8


[29] A custodial interrogation involves express questioning or its functional equivalent, initiated after a person is in custody or otherwise significantly deprived of his freedom.*fn9 The functional equivalent of express police questioning includes any words or actions that are reasonably likely to elicit an incriminating response from the suspect.*fn10 Without Miranda warnings, a suspect's statements during a custodial interrogation are presumed involuntary.*fn11


[30] We review a trial court's custodial status determination de novo.*fn12 Whether a person was in custody for purposes of Miranda is measured by an objective test.*fn13 We look at the circumstances surrounding the interrogation and decide whether a reasonable person would have felt that she was not free to terminate the interrogation and leave.*fn14


[31] In State v. Sargent,*fn15 our Supreme Court concluded that the defendant was in a custodial setting when he was locked in one side of a booth in the King County jail's visiting area during a presentence interview conducted by a probation officer.*fn16 Everybodytalksabout was interviewed by Navicky in the same setting; therefore he argues that, under Sargent, he was in custody for Miranda purposes.


[32] However, our Supreme Court has more recently explained: 'When dealing with a person already incarcerated, 'custodial' means more than just the normal restrictions on freedom incident to incarceration. There must be more than the usual restraint to depart.'*fn17 This holding calls Sargent into question.*fn18


[33] Everybodytalksabout was free to leave the room at any time.*fn19 The presentence interview was voluntary. Although Everybodytalksabout had to push a button to summon the jail officer when he was ready to leave, he readily did so when he decided to end the interview. There was no more restraint on him than usual in a jail setting. Thus, Everybodytalksabout was not in custody for purposes of Miranda protections.


[34] Neither was Everybodytalksabout interrogated. 'Interrogation' under Miranda refers to any words or actions that the state agent should know are reasonably likely to elicit an incriminating response.*fn20 For purposes of Miranda warnings, interrogation involves some degree of compulsion.*fn21


[35] In Sargent, the court ordered a probation officer to prepare a presentence report after the defendant was convicted of murder and arson. In the course of the interview, the probation officer asked Sargent if he was guilty. Sargent responded that he was innocent.*fn22 The officer then told Sargent that he would have to come to the truth with himself if he was to benefit from mental health counseling, meaning that he would have to admit that he committed the crime.*fn23 Sargent left the interview without confessing, but called the probation officer several days later and indicated that he wanted to make a written statement. At the second meeting, the officer gave Sargent a pad of paper and pencil and Sargent made a written confession.*fn24 Sargent was never provided Miranda warnings and his attorney was contacted only after he confessed.*fn25


[36] The court concluded that Sargent was interrogated in violation of the Fifth Amendment. It explained that the proper inquiry is an objective one, focusing on what the state agent knows or ought to know will be the result of his words or acts.*fn26 It held that the officer should have known that his question, '{d}id you do it,' followed by his statements to Sargent that he must come to the truth with himself to benefit from mental health counseling, would compel Sargent to confess.*fn27


[37] The situation we are presented with is distinguishable. Navicky did not ask Everybodytalksabout if he committed the crime or suggest that he must confess in order to benefit during sentencing. Rather, she simply asked for his version of the events, knowing that he had previously denied any involvement in the crime. She did so in order to allow Everybodytalksabout the opportunity to tell the court his story and to prepare a nonbiased presentence report for the court. She did not attempt to coerce Everybodytalksabout.


[38] Additionally, our Supreme Court explained in State v. Warner*fn28 that, while there is some compulsion in a situation where a defendant may believe cooperation in the form of a confession will lead to more lenient treatment, it is not the type of compulsion contemplated in Miranda.*fn29 Similarly, while there may have been some compulsion if Everybodytalksabout believed cooperation with Navicky would lead to a more lenient sentence, it is not the type of compulsion contemplated in Miranda.*fn30


[39] Navicky did not interrogate Everybodytalksabout in a manner requiring Miranda warnings. Everybodytalksabout's Fifth Amendment protection against self-incrimination was not contravened. Everybodytalksabout next argues that his right to counsel was violated when he was interviewed by Navicky without his attorney present. The right to counsel is constitutionally guaranteed at all critical stages of a criminal proceeding, including sentencing.*fn31 In Sargent, three justices of our Supreme Court concluded that the right to counsel extended to the defendant during a presentence interview with a probation officer. Justice Dore explained that the assistance of counsel was critical because Sargent's appeal was pending and Sargent 'was ignorant of the fact that, if his conviction was overturned on appeal, the confession would render his new trial a formality.'*fn32


[40] Some federal courts have held that presentence interviews with probation officers are not critical stages requiring counsel.*fn33 These courts have distinguished the purposes for which the defendant's statements are gathered and the role of a probation officer. For example, in United States v. Jackson,*fn34 the Seventh Circuit noted:


[41] A federal probation officer is an extension of the court and not an agent of the government. The probation officer does not have an adversarial role in the sentencing proceedings. In interviewing a defendant as part of the presentence investigation, the probation officer serves as a neutral information gatherer for the sentencing judge.*fn35


[42] Similarly, Navicky did not have an adversarial role in these proceedings. However, a key distinction is that Everybodytalksabout's appeal was pending when he was interviewed by Navicky. His statements were used to convict him in a later trial, not merely for sentencing purposes. Like the defendant in Sargent, he may have been ignorant of the fact that, if his conviction was overturned on appeal, his incriminating statements could be used against him in a subsequent trial. Considering the gravity of what was at stake, we conclude that the presentence interview constituted a critical stage of the proceeding.


[43] But a defendant's right to counsel is not necessarily contravened whenever the State obtains incriminating statements from the accused after the right to counsel has attached.*fn36 We must ask whether the State deliberately elicited incriminating statements from Everybodytalksabout.*fn37 This is a legal question, which we review de novo.*fn38


[44] The Supreme Court has distinguished the 'deliberately elicited' standard from custodial interrogation under the Fifth Amendment.*fn39 Interrogation is not necessary to find deliberate elicitation. The State deliberately elicits statements from a defendant when it intentionally creates a situation likely to induce the defendant to make incriminating statements without the assistance of counsel.*fn40


[45] The State did not deliberately elicit incriminating statements from Everybodytalksabout. The system by which a DOC official interviews a defendant for purposes of preparing a presentence report for the court is not, by design, likely to elicit incriminating statements. Participation is voluntary and the objective is to gather unbiased sentencing information. Additionally, Everybodytalksabout has not shown that Navicky's specific conduct or questions were likely to elicit incriminating statements. Included within a series of impartial questions, Navicky asked Everybodytalksabout for his version of the events. Everybodytalksabout maintained his innocence throughout trial and Navicky's question created a situation where Everybodytalksabout could proclaim his innocence once more. Unlike the officer in Sargent, Navicky did not follow up the question with coercive statements that suggested it would be in his best interests to confess to the crime. Everybodytalksabout's right to counsel was not contravened.


[46] The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.


[47] Everybodytalksabout also argues that his Sixth Amendment right to confront witnesses was contravened because the trial court placed limits on the cross-examination of Vincent Rain. Specifically, he challenges the court's decision to exclude cross-examination regarding Rain's: (1) status as a sex offender; (2) specific prison infractions; (3) specific probation violations; and (4) threats to assert his constitutional rights. The constitutions of the United States and the State of Washington guarantee criminal defendants the right to confront and cross-examine adverse witnesses.*fn41 'Although the right to confrontation should be zealously guarded, that right is not without limitation.'*fn42


[48] The confrontation clause requires that a defendant be allowed to explore a witness's motivation for testifying on behalf of the State.


[49] 'The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.'*fn43 But, in exercising its discretion, the trial court may consider whether specific instances of misconduct are relevant to the witness's veracity on the stand, or otherwise relevant to the issues presented at trial.*fn44


[50] A court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.*fn45 We will reverse the trial court only if no reasonable person would have decided the matter as it did.*fn46


[51] The defense attempted to admit evidence of Rain's sex offender status to show bias. The court ruled that this information could not be admitted because the evidence did not show a factual nexus between Rain's sex offender status and his fear for his safety. Everybodytalksabout argues that there was sufficient evidence establishing this nexus.


[52] But the court also based its decision on a second ruling that, even if there were a factual nexus, the sex offender status was simply an explanation for Rain's desire to transfer to another facility. The fact that Rain wanted to transfer was the key to establishing bias, and that evidence was admitted. Thus, Rain's status as a sex offender had little, if any, value for establishing bias and the potential prejudice of this evidence far outweighed the probative value.*fn47 The court did not abuse its discretion.


[53] In order to permit a showing of bias, the court also allowed into evidence the fact that Rain had an extensive history of infractions while incarcerated. Potential bias stemmed from Rain's incentive to cooperate with the State in order to secure a transfer, which otherwise would have been difficult due to his prison infractions. The court refused to allow cross-examination regarding Rain's specific infractions, except one for the possession of stolen property. The court determined that evidence of the specific infractions went beyond what was required to show bias. Additionally, the prejudicial effect would have outweighed the probative value. The court acted reasonably.


[54] Everybodytalksabout also attempted to admit evidence that Rain assaulted his wife, as well as other specific instances where he violated his probation. Just as it ruled in regard to specific instances of prison infractions, the court concluded that evidence that Rain violated the terms of his probation was admissible to show bias or motive. But it ruled that specific instances of violations could not be admitted because such evidence offered little probative value and it could confuse the jury. The court did not abuse its discretion.


[55] Finally, Everybodytalksabout attempted to admit evidence that Rain threatened to assert his right to counsel and Fifth Amendment privileges while cooperating as an informant. He argues that this evidence was relevant to show that Rain was biased because it showed that he perceived he could manipulate the system. The court ruled that this evidence was not relevant to showing that Rain was biased or personally motivated to assist the State.*fn48 The court did not abuse its discretion.


[56] Next, Everybodytalksabout challenges the court's denial of his motion for a mistrial. He moved for a mistrial after Detective Ramirez violated an in limine ruling precluding witnesses from discussing their testimony with other witnesses by telling Yolonda Lopez that he was unhappy with her testimony because it was inconsistent with her testimony from the prior trial. Everybodytalksabout argues that this misconduct deprived him of a fair trial.


[57] The trial court disagreed and ruled that, although there was a violation of its earlier ruling, a mistrial was not necessary. It decided that the appropriate sanction was to allow impeachment and exploration of the violation during cross-examination. The court noted that this was not a situation where witnesses got together to collude or discuss how to make their testimony consistent, which were the purposes behind the court's in limine ruling.


[58] We review the trial court's denial of a motion for mistrial for an abuse of discretion.*fn49 A trial court's denial of a motion for mistrial will be overturned only when there is a substantial likelihood that the error prompting the request for a mistrial affected the jury's verdict.*fn50 A court 'should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly.'*fn51


[59] The court did not abuse its discretion by denying Everybodytalksabout's motion. It remedied any prejudice by allowing the parties to question the witnesses about the violation. Everybodytalksabout cross-examined Ramirez and exposed the fact that he had violated the in limine order by telling Yolonda that he was dissatisfied with her testimony. Everybodytalksabout had the opportunity to question Yolonda about the incident, but chose not to. The court's remedy was reasonable.


[60] Everybodytalksabout moved to dismiss under CrR 8.3(b) and the due process clause. He appeals the court's denial of his motion, asserting that he did not receive a fair trial due to the State's discovery violation and destruction of evidence.


[61] A trial court's decision on a motion to dismiss is reviewed for a manifest abuse of discretion.*fn52 'CrR 8.3(b) is designed to protect against arbitrary action or governmental misconduct.'*fn53 A dismissal under CrR 8.3(b) may be justified where the State's misconduct violates the defendant's constitutional right to a fair trial.*fn54 But '{d}ismissal under this rule is an extraordinary remedy and is improper absent material prejudice to the rights of the accused.'*fn55


[62] Everybodytalksabout claims that, despite his repeated discovery requests for Rain's DOC file, the State did not turn it over. He eventually received the file from the DOC, but argues that the prosecution's suppression of evidence constituted a Brady*fn56 violation.


[63] The court found that the State's non-disclosure did not hamper Everybodytalksabout's ability to prepare for trial. At the time the court heard Everybodytalksabout's motion, the defense had Rain's DOC file for over five months. Additionally, the court granted a motion to continue, which allowed the defense eleven additional days to conduct follow-up investigation after interviewing Rain. The court concluded that this remedy was sufficient to alleviate any prejudice. It did not abuse its discretion.


[64] Everybodytalksabout also alleges that the State failed to preserve material exculpatory evidence. He claims that Ramirez acted in bad faith by destroying an audiotape of his interview with Rain and the clothing of Ron Hay, who was another suspect in the case.


[65] Under the due process clause, a defendant has a right to have material evidence preserved for use at trial.*fn57


[66] 'A showing that the evidence might have exonerated the defendant is not enough.'*fn58 To meet the standard of materiality, the evidence must (1) possess an exculpatory value that was apparent before the evidence was destroyed; and (2) be of such a nature that the evidence would be unobtainable by other reasonably available means.*fn59 When destroyed evidence does not rise to the level of being materially exculpatory, there still may be a due process violation if the State failed to preserve 'potentially useful' evidence in bad faith.*fn60


[67] The Rain interview was transcribed. The trial court concluded that the transcript of the interview was comparable evidence of the audiotape and therefore the destroyed audiotape was not material. The court also determined that the State did not act in bad faith by destroying the tape because the significant value of the interview was preserved through transcription. The court did not abuse its discretion.


[68] Ronald Hay was brought to the attention of the Seattle police department in November or December 1996. He was wanted for murder in Oregon and was a suspect in the Jones murder for a short period of time. The Oregon crime lab tested Hay's knife for blood traces, which were not found. Hay's clothing was sent to the Seattle police, but never tested for blood. His clothing was destroyed in August 1999.


[69] The court concluded that Hay's clothing had no apparent exculpatory value when destroyed in 1999. There had been two trials, the second one ending in a conviction. The police no longer considered Hay a suspect.


[70] Additionally, the court found no bad faith by the State. The police department held Hay's clothes for a year and a half after Everybodytalksabout's conviction. The clothing was never withheld from Everybodytalksabout in the first two trials, yet the defense never tested it. The court did not abuse its discretion.


[71] Lastly, Everybodytalksabout argues that the cumulative effect of the trial court's errors deprived him of a fair trial. But the court made no errors, and Everybodytalksabout received a fair trial.


[72] AFFIRMED.



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Opinion Footnotes

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[73] *fn1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct, 1602, 16 L.Ed. 2d 694 (1966).


[74] *fn2 State v. Everybodytalksabout, 145 Wn.2d 456, 460, 39 P.3d 294 (2002).


[75] *fn3 Everybodytalksabout, 145 Wn.2d at 480.


[76] *fn4 Although Navicky testified that she generally provided Miranda warnings before conducting a presentence interview, she could not remember specifically whether she provided Everybodytalksabout warnings. The trial court refused to infer that he was given Miranda warnings.


[77] *fn5 State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 (1995).


[78] *fn6 Warner, 125 Wn.2d at 884.


[79] *fn7 State v. Heritage, 152 Wn.2d 210, 214, 95 P.3d 345 (2004) (citing State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed. 2d 781 (1987)).


[80] *fn8 Heritage, 152 Wn.2d at 214; State v. Sargent, 111 Wn.2d 641, 647, 762 P.2d 1127 (1988).


[81] *fn9 State v. Hawkins, 27 Wn. App. 78, 81-82, 615 P.2d 1327 (1980).


[82] *fn10 State v. Walton, 64 Wn. App. 410, 414, 824 P.2d 533 (1992).


[83] *fn11 Heritage, 152 Wn.2d at 214.


[84] *fn12 State v. Lorenz, 152 Wn.2d 22, 36-37, 93 P.3d 133 (2004).


[85] *fn13 Lorenz, 152 Wn.2d at 36-37.


[86] *fn14 State v. Templeton, 148 Wn.2d 193, 208, 59 P.3d 632 (2002).


[87] *fn15 111 Wn.2d 641, 647, 762 P.2d 1127 (1988).


[88] *fn16 Sargent, 111 Wn.2d at 649.


[89] *fn17 Warner, 125 Wn.2d at 885. See also State v. Post, 118 Wn.2d 596, 607, 826 P.2d 172, 837 P.2d 599 (1992).


[90] *fn18 In Warner, the court noted the Sargent opinion and did not overrule it. Warner, 125 Wn.2d at 885. However, the court was not directly presented with the circumstances present in Sargent.


[91] *fn19 See State v. Jacobsen, 95 Wn. App. 967, 975, 977 P.2d 1250 (1999) (explaining that a defendant who was ordered to attend the psychological evaluation was not in custody for purposes of Miranda because he 'was free to leave and in fact returned home with his mother after the conclusion of the interview').


[92] *fn20 Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed. 2d 297 (1980).


[93] *fn21 Warner, 125 Wn.2d at 884.


[94] *fn22 Sargent, 111 Wn.2d at 642.


[95] *fn23 Sargent, 111 Wn.2d at 643.


[96] *fn24 Sargent, 111 Wn.2d at 643.


[97] *fn25 Sargent, 111 Wn.2d at 642, 643-44.


[98] *fn26 Sargent, 111 Wn.2d at 651.


[99] *fn27 Sargent, 111 Wn.2d at 650.


[100] *fn28 125 Wn.2d 876, 884, 889 P.2d 479 (1995).


[101] *fn29 Warner, 125 Wn.2d at 884. Warner involved a defendant who made admissions during group therapy sessions conducted by counselors at the Department of Juvenile Rehabilitation. Warner, 125 Wn.2d at 884.


[102] *fn30 Warner, 125 Wn.2d at 884.


[103] *fn31 State v. Robinson, 153 Wn.2d 689, 694, 107 P.3d 90 (2005).


[104] *fn32 Sargent, 111 Wn.2d at 647.


[105] *fn33 U. S. v. Jackson, 886 F.2d 838, 844 (7th Cir. 1989); Brown v. Butler, 811 F.2d 938, 940-41 (5th Cir. 1987); Baumann v. U. S., 692 F.2d 565, 575-76 (9th Cir. 1982).


[106] *fn34 886 F.2d 838, 844 (7th Cir. 1989).


[107] *fn35 Jackson, 886 F.2d at 844.


[108] *fn36 Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed. 2d 364 (1986).


[109] *fn37 Courts have applied two different standards in assessing whether a defendant's right to counsel was violated: the 'knowingly circumvented' standard and the 'deliberately elicited' standard. Compare Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 88 L.Ed. 2d 481 (1985) (knowingly circumvented), and Sargent, 111 Wn.2d at 645 (three justices applying the knowingly circumvented standard in a concurring opinion), with Fellers v. U. S., 540 U.S. 519, 524, 124 S.Ct. 1019; 157 L.Ed. 2d 1016 (2004) (deliberately elicited), and Kuhlmann v. Wilson, 477 U.S. 436, 459, 106 S.Ct. 2616, 91 L.Ed. 2d 364 (1986) (deliberately elicited), and In re Personal Restraint of Benn, 134 Wn.2d 868, 911, 952 P.2d 116 (1998) (deliberately elicited), and Sargent, 111 Wn.2d at 665 (Durham, J. dissenting) (explaining that the rejection of the deliberately elicited test in favor of knowing circumvention is 'plain-faced wrong'). In Sargent, three justices applied the knowingly circumvent standard and concluded that Sargent's right to counsel was violated. Sargent, 111 Wn.2d at 645. But knowing circumvention is not the standard for determining whether the Sixth Amendment right to counsel has been violated. In State v. Fellers, the United States Supreme Court made clear that the deliberate elicitation test is the appropriate standard. Fellers, 540 U.S. at 524 (explaining that the court has consistently applied the deliberately elicited standard).


[110] *fn38 See U. S. v. Henry, 447 U.S. 264, 269, 100 S.Ct. 2183, 65 L.Ed. 2d 115 (1980) ('The question here is whether under the facts of this case a Government agent 'deliberately elicited' incriminating statements from Henry within the meaning of Massiah.').


[111] *fn39 Fellers, 540 U.S. at 524 (citing Michigan v. Jackson, 475 U.S. 625, 632, n. 5, 106 S.Ct. 1404, 89 L.Ed. 2d 631 (1986) and Rhode Island v. Innis, 446 U.S. 291, 300, n. 4, 100 S.Ct. 1682, 64 L.Ed. 2d 297 (1980)).


[112] *fn40 Henry, 447 U.S. at 274; Massiah v. U. S., 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed. 2d 246 (1964); Randolph v. California, 380 F.3d 1133, 1146 (9th Cir. 2004); U.S. v. Kimball, 884 F.2d 1274, 1278 (9th Cir. 1989).


[113] *fn41 U.S. Const. amend. VI; Wash. Const. art. I, sec. 22.


[114] *fn42 State v. O'Connor, 155 Wn.2d 335, 348, 119 P.3d 806 (2005) (citing State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002)).


[115] *fn43 Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105; 39 L.Ed. 2d 347 (1974) (quoting 3A J. Wigmore, Evidence sec. 940, p. 775 (Chadbourn rev. 1970)).


[116] *fn44 O'Conner, 155 Wn.2d at 349 (citing State v. Griswold, 98 Wn. App. 817, 831, 991 P.2d 657 (2000)).


[117] *fn45 O'Conner, 155 Wn.2d at 351(citing State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).


[118] *fn46 O'Conner, 155 Wn.2d at 351 (citing State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004)).


[119] *fn47 See ER 403 (providing that, '{a}lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence').


[120] *fn48 Relevant evidence is 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.' ER 401.


[121] *fn49 State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002) (citing State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)); State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000).


[122] *fn50 Rodriquez, 146 Wn.2d at 269-70 (citing State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994)); Greiff, 141 Wn.2d. at 921.


[123] *fn51 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).


[124] *fn52 State v. Moen, 150 Wn.2d 221, 226, 76 P.3d 721 (2003) (citing State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997)); State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993).


[125] *fn53 Moen, 150 Wn.2d at 226 (citing State v. Starrish, 86 Wn.2d 200, 544 P.2d 1 (1975); State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997)). CrR 8.3(b) states: 'The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.'


[126] *fn54 State v. Hanna, 123 Wn.2d 704, 715, 871 P.2d 135 (1994).


[127] *fn55 Moen, 150 Wn.2d at 226.


[128] *fn56 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963).


[129] *fn57 State v. Stannard, 109 Wn.2d 29, 37, 742 P.2d 1244 (1987) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963)).


[130] *fn58 State v. Wittenbarger, 124 Wn.2d 467, 475, 880 P.2d 517 (1994).


[131] *fn59 Stannard, 109 Wn.2d at 37 (citing California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed. 2d 413 (1984)); Wittenbarger, 124 Wn.2d at 475.


[132] *fn60 Wittenbarger, 124 Wn.2d at 477 (citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed. 2d 281 (1988)).