Oral Argument Date April 3, 2014
Appeal from Cowlitz Superior Court. Docket No: 11-1-00827-1. Judgment or order under review. Judge signing: Honorable Marilyn K Haan. Date filed: 07/16/2012.
Jodi R. Backlund and Manek R. Mistry (of Backlund & Mistry ), for appellant.
Susan I. Baur, Prosecuting Attorney, and Amie L. Matusko, Deputy, for respondent.
Concurring: Bradley A. Maxa, Linda Cj Lee.
[184 Wn.App. 870] Thomas R Bjorgen,
[¶1] 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 [184 Wn.App. 871], (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.
[¶2] 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 Fedoruk has shown a reasonable probability that the deficient performance prejudiced him. Accordingly, we reverse Fedoruk's conviction and remand for further proceedings.
[¶3] 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misconduct argument in the published portion of this opinion and the admission of Fedoruk's statements in the unpublished portion, because those issues may recur on remand.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.
A. Fedoruk's History of Mental Illness
[¶4] 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.
[184 Wn.App. 872] [¶5] 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.
[¶6] 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
[¶7] 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.
[¶8] When the CCOs and deputies approached the house, Fedoruk met them at the front door. Despite repeated [184 Wn.App. 873] 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.
[¶9] 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 (VRP) at 121-22. Dzhumaniyazov led the officers into the ravine, where they found Ischenko's body.
[¶10] Deputy Cory Robinson then placed Fedoruk in a patrol car and read him the Miranda  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.
[¶11] 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 [184 Wn.App. 874] cops? I never touch him. I not touch him, never. I go to property of Tatyana, get goats.
VRP at 907-08.
[¶12] 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 room, but Deputy Gilchrist, who interpreted Fedoruk's statement to mean that Fedoruk was willing to speak to him, remained.
[¶13] Deputy Gilchrist interviewed Fedoruk without an interpreter 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.
[¶14] 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
[¶15] 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.
[¶16] The trial court also ordered Fedoruk to undergo a competency evaluation at Western State Hospital. The [184 Wn.App. 875] 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.
[¶17] 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.
[¶18] 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 affirmative 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 [184 Wn.App. 876] 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 diminished capacity or mental disease or defect, and ruled that the jury would not be instructed on diminished capacity.
[¶19] 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.
[¶20] 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 [184 Wn.App. 877] factual foundation for the basis to continue [and] that diligence has not been shown." VRP at 406.
D. Evidence About the Night of Ischenko's Death
[¶21] 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.
[¶22] 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 ...