State v. Scherf

/f
^ IN C
rCTE
IN CLERKt OFFICE
this opihiori Vvas filed for record
•UnCMEOOU
COURT,SKIE OF WlkKliNSTON
at on
DRT^ MV 0 8 I
I kxM^T I ^'
CHIEF JUSTICE
SUSAN Ly^CARLSON
SUPREME ©6URtCLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
No. 88906-6
Respondent,

V. En Banc

BYRON EUGENE SCHERF,

Appellant.
Filed NOV 0 8 2018

JOHNSON,J.—While in prison serving a life without parole sentence,

Byron Scherf murdered a prison guard. He was tried, convicted of aggravated

murder, and sentenced to death. In his appeal, he raises multiple claims of error:

procedural, statutory, and constitutional. Based on the holding ofState v. Gregory,

No. 88086-7(Wash. Oct. 11, 2018),' we vacate the sentence. For the following

reasons, we affirm the conviction.

'http://www.courts.wa.gov/opinions/pdf/880867.pdf.
State V. Scherf(Byron Eugene), No. 88906-6

Scherf raises issues specific to the guilt phase that must be addressed.

Did the trial court err in denying Scherfs motion to suppress physical
evidence pursuant to Superior Court Criminal Rule (CrR) 3.6?

Scherf alleges that the trial court erred in denying his motion to suppress

physical evidence for three reasons, each of which we discuss in turn.

Privacy Right to Medical Records

First, Scherf argues that medical records seized from his cell at the

Washington State Reformatory(WSR)should have been suppressed because he

had a statutory right to privacy in the medical records found in his cell under the

Uniform Health Care Information Act(Act), chapter 70.02 RCW.He argues that

the medical records in his cell, which were viewed by Washington State

Department of Corrections(DOC)officials during a search authorized by a

warrant, were outside the scope ofthe warrant and then improperly used to

establish probable cause for warrant 11-32, a subsequent warrant. He argues the

portions ofthe affidavit supporting warrant 11-32 describing these medical records

should not have been included because they were fruits ofthe illegal search. Scherf

concedes that he has no Fourth Amendment privacy rights but asserts he had a

statutory right to privacy under the Act.^

^ Under the Fourth Amendment to the United States Constitution, a prisoner has no
reasonable expectation of privacy in documents found in his prison cell or taken from his cell
and stored. Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393(1984); United
State V. Scherf(Byron Eugene), No. 88906-6

The Act regulates disclosure and access to medical and health care

information. The legislature found that "[hjealth care information is personal and

sensitive information that if improperly used or released may do significant harm

to a patient's interests in privacy, health care, or other interests." RCW

70.02.005(1). Therefore, the Act provides limitations as to when health care

information may be disclosed without the consent ofthe patient:

Except as authorized elsewhere in this chapter, a health care provider,
an individual who assists a health care provider in the delivery of
health care, or an agent and employee of a health care provider may
not disclose health care information about a patient to any other
person without the patient's written authorization. A disclosure made
under a patient's written authorization must conform to the
authorization

RCW 70.02.020(1). The Act does not limit disclosure by the patient of his own

health care information.

A "health care provider" is defined as "a person who is licensed, certified,

registered, or otherwise authorized by the law ofthis state to provide health care in

the ordinary course of business or practice of a profession." RCW 70.02.010(19).

However, the legislature has also noted that

[pjersons other than health care providers obtain, use, and disclose
health record information in many different contexts and for many
different purposes. It is the public policy ofthis state that a patient's
interest in the proper use and disclosure ofthe patient's health care

States V. Edwards, 415 U.S. 800, 808, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974); State v. Cheatam,
112 Wn. App. 778, 786, 51 P.3d 138 (2002), aff'd, 150 Wn.2d 626, 81 P.3d 830(2003).
State V. Scherf(Byron Eugene), No, 88906-6

information survives even when the information is held by persons
other than health care providers.

RCW 70.02.005(4).

Scherf argues that the medical records were effectively held by DOC

because they were in Scherfs cell and, therefore, DOC had a duty to protect his

privacy interest under RCW 70.02.005. The State argues that the Act does not limit

disclosure by the patient of his personal medical or mental health records, so the

protections ofthe Act do not apply to records Scherf chose to keep in his cell. Last,

the State notes that Scherf kept the items in his cell and the records were not kept

confidential because Scherfs cell was subject to periodic searches by the

corrections staff under DOC Policy 420.320 (rev. Sept. 1, 2015).

Here, the medical records at issue were not held by a health care provider or

facility. Importantly, RCW 70.02.005(4) does not carve out a duty to non-health

care providers but merely states it is "the public policy of this state that a patient's

interest in the proper use and disclosure ofthe patient's health care information

survives even when the information is held by persons other than health care

providers." Plus, the information was held in the cell. The statute cannot be read to

require DOC to obtain authorization from an inmate, especially in light ofFourth

Amendment case law that clearly establishes that there is no expectation of privacy

in items in an inmate's cell or taken from his or her cell. The information stored in
State V. Scherf(Byron Eugene), No. 88906-6

Scherfs cell was not improperly used to establish probable cause for the issuance

of warrant 11-32 because the records were not protected from disclosure by statute

and Scherf had no expectation of privacy in his cell.

Probable Cause

Second, Scherf argues that the medical records seized should have been

excluded from the affidavit in support of warrant 11-32 and, therefore, the affidavit

was insufficient to provide probable cause.

The Fourth Amendment provides that warrants may be issued only upon a

showing of"'probable cause, supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or things to be seized.'" State

V. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199(2004). Probable cause exists where

there are facts and circumstances sufficient to establish a reasonable inference that

the defendant is involved in criminal activity and that evidence ofthe crime can be

found at the place to be searched. State v. Thein, 138 Wn.2d 133, 140,977 P.2d

582(1999). In addition, probable cause requires a nexus between criminal activity

and the item to be seized, and also a nexus between the item to be seized and the

place to be searched. A magistrate is entitled to make reasonable inferences from

the facts and circumstances set forth in the affidavit.
State V. Scherf(Byron Eugene), No. 88906-6

We review the issuing magistrate's determination of probable cause for

abuse of discretion and give probable cause determinations great deference. State

V. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001). All doubts are resolved in

favor of upholding the warrant. State v. Kalakosky, 121 Wn.2d 525, 531, 852 P.2d

1064(1993).

The trial court held that search warrant 11-32 was supported by probable

cause because "evidence of a crime" is broadly defined. Clerk's Papers(CP)at

2290. The trial court noted that"of meant "'proceeding from; belonging to;

relating to; connected with; [or] concerning.'" CP at 2290 (alteration in original)

(quoting State v. Rinkes, 49 Wn,2d 664,666, 306 P.2d 205 (1957)). The phrase

"evidence of a crime" is recognized as broader than evidence proving a crime was

committed. It also includes evidence relating to, connected with, or concerning a

crime. Given this broad definition, the trial court concluded,"Evidence relating to

the sentence the court is empowered to impose[, such as mitigation evidence,] is

evidence of a crime," especially where the State is statutorily obliged to consider

mitigation evidence when deciding what sentence to seek. CP at 2290; see ROW

10.95.040(1). Furthermore, the mental capacity of a defendant is a statutory

consideration for a jury in a capital case. Thus, the trial court reasoned that any
State V. Scherf(Byron Eugene), No. 88906-6

medical records indicating mental health issues are potentially relevant in a case

with the potential of capital punishment.

Scherf argues that "evidence of a crime" does not include mitigation

evidence. He argues that nothing linked the records to the death of Officer Jayme

Biendl or his involvement in it and that all ofthose records predated the crime.

Scherf also takes issue with Detective B. Scott Wells's speculation that the records

could be used to defeat defenses Scherf might assert in this case.

The State argues, and the trial court held, that "evidence of a crime" includes

evidence relating to sentencing factors. Br. of Resp't at 33. The State and the trial

court noted that Blakely v. Washington^ requires every fact that enhances

punishment be pleaded and proved to a jury. The State argues that any fact that

bears on the decision the jury must make is all part "ofthe crime" under

investigation. The State argues that it was reasonable to believe that the prison

would have a medical file for Scherf that included medical and psychological

evidence bearing on his mental and physical condition. In addition, the State

argues that it was reasonable to believe that those files would have evidence that

bore on Scherfs ability to form premeditated intent to kill.

3 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

7
State V. Scherf(Byron Eugene), No. 88906-6

We agree with the trial court. Here, probable cause exists based on the facts

and circumstances and was sufficient to establish a reasonable inference that

evidence ofthe crime, in the form of mitigation evidence, could be found at the

place to be searched.

The police were investigating the crime of aggravated first degree murder

when they sought warrant 11-32. The affidavit supporting warrant 11-32 attached

and incorporated by reference the affidavit for warrant 11-28. The affidavit

supporting warrant 11-28 stated that on January 29, 2011, Scherf was missing from

the scheduled inmate count. About 10 minutes later, corrections officers found him

in the prison chapel with blood on his hands and clothes. About 1 hour later.

Officer Biendl was found deceased in the chapel.

The State sought a search warrant to obtain mitigation evidence that would

allow it to consider the death penalty, and the search warrant detailed sufficient

facts and circumstances to establish a reasonable inference that mitigation evidence

could be found at the place searched. The affidavit supporting warrant 11-32

detailed facts related to Scherfs mental and physical abilities. It noted that Scherf

maintained numerous documents and books in his cell, including medical and

psychological reports. The documents detailed Scherfs history in the military,

prison, and school. The reports and documents revealed that Scherf was capable of
State V. Scherf(Byron Eugene), No. 88906-6

forming the premeditated intent to commit the murder by demonstrating the lack of

any mental disease or defect. The officers also reasonably believed that medical

records would contain evidence regarding the types and frequency of medications

Scherftook and that evidence of skipping the "pill line" that night would suggest

that he was in the chapel at the time of the murder.

The affidavit set out numerous facts that establish a nexus between the crime

and Scherf. The facts outlined in the affidavit support the inference that the files

could contain evidence relating to the elements of the crime, aggravating factors,

and potential mitigation. There was sufficient support to establish probable cause

to search those files.

In addition, Scherf argues that the trial court's ruling conflicts with the

Superior Court Special Proceedings Rules—Criminal(SPRC)for capital cases. He

argues that SPRC 5"^ preserves a defendant's privacy interest in reports concerning

his mental condition. Scherfs argument is unpersuasive. SPRC 5 regulates

SPRC 5(g) provides that "[wjithin 24 hours after a jury returns a verdict finding a
defendant guilty of aggravated murder in the first degree, the court will require the defendant to
elect whether he or she may present expert testimony at the special sentencing proceeding
conceming his or her mental condition. If the defendant elects not to present such testimony, the
report shall remain permanently sealed, the restrictions set out in subsection (f) shall remain
permanently in effect, and the State shall be permanently prohibited from direct or derivative use
against the defendant of the report or of materials or information provided to the expert. If the
defendant elects to present such testimony, the court shall provide a copy of the experts' reports
to the prosecuting attorney and shall relieve the experts ofthe restrictions. The prosecuting
attorney may use information obtained from the expert solely to rebut expert testimony offered
by the defense at the special sentencing proceeding."
State V. Scherf(Byron Eugene), No. 88906-6

disclosure of defense or prosecution expert witness reports created for the purposes

of a special sentencing. It does not limit the investigation into or use of medical or

psychological reports created as a result of evaluation or treatment for some other

purpose.

Particularitv Requirement

Third, Scherf argues that warrant 11-32 failed to meet the particularity

requirement ofthe Fourth Amendment. We review whether a warrant meets the

particularity requirement de novo. State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d

611 (1992). A valid warrant under the Fourth Amendment must particularly

"'describ[e] the place to be searched, and the persons or things to be seized.'"

Maddox, 152 Wn.2d at 505. The particularity requirement prevents general

searches, seizure of objects on the mistaken assumption that they fall within the

issuing magistrate's authorization, and the issuance of warrants on loose, vague, or

doubtful bases of fact.

Warrants '"must enable the searcher to reasonably ascertain and identify the

things which are authorized to be seized.'" Perrone, 119 Wn.2d at 546(quoting

United States v. Cook,657 F.2d 730, 733 (5th Cir. 1981)). By describing the items

to be seized with particularity, the warrant limits the discretion ofthe executing

officer to determine what to seize. A description is valid if it is as specific as the

10
State V. Scherf(Byron Eugene), No. 88906-6

circumstances and the nature ofthe activity, or crime, under investigation permits.

A warrant that lists generic classifications is not impermissibly broad "if probable

cause is shown and a more specific description is impossible." State v. Stenson,

132 Wn.2d 668, 692,940 P.2d 1239(1997).

Warrant 11-32 authorized the search and seizure of"WSR inmate property

and storage room" and "WSR Administration Building," as well as

[a]ny and all records, documents, papers, writings both typed and
handwritten, books or any other personal records for inmate Byron E.
Scherf08-13-1958, DOC #287281. Such records and papers are to
include; Schooling and educational documentation and records,
certificates of educational achievement, military records,
psychological evaluations and assessments, psychological records,
medical records to include medication information, prison records to
include work history, housing history, and disciplinary issues, books,
books with specific selections highlighted, underlined or bookmarked
and writings in the margins of such books.

CP at 2351-52(boldface omitted). In addition, the accompanying affidavit for

search warrant that was both physically attached and incorporated by reference

specifically identified "WSR records retention" as an area to be searched. CP at

2353 (boldface omitted).

First, Scherf argues that the warrant's description of the place to be searched

as "WSR records retention" is impermissibly broad because records could be

contained in many places throughout the prison; the warrant did not specifically

list the medical records room. The trial court noted that the medical records room

11
State V. Scherf(Byron Eugene), No. 88906-6

is located on the WSR premises and the warrant allowed Detective Wells to seek

and obtain Scherfs medical records "wherever retained within the Washington

State Reformatory." CP at 2293. The warrant described the location to be searched

generally as the "Washington State Reformatory(WSR)located at 16550 177^*^

Avenue S.E. Monroe, Washington." CP at 2351 (boldface omitted). The medical

records room was located on the WSR premises; therefore, it was encompassed

within the scope of the warrant. We agree with the trial court; read together, the

warrant and the affidavit specified that the WSR would be searched.

Second, Scherf argues that the warrant failed to describe the items to be

seized and the place to be searched with particularity because it was broadly

phrased with no limitations or guidelines. He relies on United States v. Spilotro,

800 F.2d 959(9th Cir. 1986), and State v. Riley, 121 Wn.2d 22, 846 P.2d 1365

(1993), to argue similar generalizations have been held to be impermissibly broad.

In Spilotro, 800 F.2d at 962, the Ninth Circuit held that a warrant in a suspected

organized crime case was overbroad when it authorized seizure of"'notebooks,

notes, documents, address books, and other records[, etc.].'" In Riley, 121 Wn.2d

at 26, we held that a warrant in a computer trespass and possession of a stolen

access device case was overbroad when it authorized the seizure of'"notes,

records, lists, ledgers, information stored on hard or floppy discs, personal

12
State V. Scherf(Byron Eugene), No. 88906-6

computers, modems, monitors, speed dialers, touchtone telephones, electronic

calculator, electronic notebooks or any electronic recording device.'"

The State points to Stenson as an example of a similar warrant held to be

sufficiently particular. The court in Stenson held that a warrant that limited the

search and seizure of business, financial, and personal records that indicated a

relationship between the defendant and the victims was not impermissibly broad.

As Scherf points out, the scope ofthe warrant in Stenson was limited by the

requirement that such records must be related to the parties' relationship. In that

case, we found that there was probable cause to believe a crime had been

committed and that evidence ofthe relationships between the two couples (the

defendant, defendant's wife, victim, and victim's wife)related to the crime. Here,

there was no such limitation, and Scherf argues warrant 11-32 authorized the

search and seizure of virtually any and every paper having anything to do with

him.

Scherf minimizes the crucial distinction that Spilotro and Riley were not

capital cases. Here, the trial court held the particularity requirement was met

because the records sought were potentially relevant to mitigation, and the court

was correct in acknowledging "[t]he evidence which may be considered in a

capital case is unique and cannot be compared to the more limited evidentiary

13
State V. Scherf(Byron Eugene), No. 88906-6

requirements of other non-capital cases." CP at 2292. Capital cases require the

prosecutor to weigh mitigation evidence prior to filing the death notice. RCW

10.95.040(1). In light ofthis requirement, a warrant authorizing a search for

"records, documents, papers, writings both typed and handwritten, books or any

other personal records for inmate Byron E. Scherf 08-13-1958, DOC #287281"

relates to potential evidence specifically relevant in a capital case. CP at 2351

(boldface omitted). The warrant further specified that those records referred to

education, military, psychological, medical, and prison records.

If"the precise identity of items sought cannot be determined when the

warrant is issued, a generic or general description of items will be sufficient if

probable cause is shown and a more specific description is impossible." Stenson,

132 Wn.2d at 692(citing Perrone, 119 Wn.2d at 547). Because we have held that

the affidavit accompanying warrant 11-32 was sufficient to establish probable

cause and given the broad nature of mitigation evidence, we hold the description of

items to be seized in warrant 11-32 complied with the particularity requirement.

The trial court did not err in denying Scherfs motion to suppress evidence.

14
State V. Scherf(Byron Eugene), No. 88906-6

Did the trial court err when it denied Scherfs motion to suppress his
videotaped statements made to the police on February 7, 9, 10, 11, and 14,
2011?

Scherf argues that the trial court erred in denying his motion to suppress

videotaped statements for four reasons:(1)he was denied access to counsel under

CrR 3.1;(2) he was held unlawfully in the Snohomish County Jail in violation of

RCW 72.68.040 and .050;(3)he was denied due process by the prosecutor's

failure to bring him promptly before the court as required by CrR 3.2.1(d)(1) and

CrRLJ 3.2.1(d)(1); and(4)his statements were involuntary under the Fourth, Fifth,

Sixth, and Fourteenth Amendments to the United States Constitution. The trial

court denied the motion to suppress on all grounds and entered written findings of

fact and conclusions of law.

We review findings offact related to a motion to suppress under the

substantial evidence standard. "Substantial evidence is 'evidence sufficient to

persuade a fair-minded, rational person ofthe truth ofthe finding.'" State v. Levy,

156 Wn.2d 709, 733, 132 P.3d 1076(2006)(quoting v. Mendez, 137 Wn.2d

208, 214, 970 P.2d 722(1999)). "'Unchallenged findings offact entered following

a suppression hearing are verities on appeal.'" State v. Eisfeldt, 163 Wn.2d 628,

634, 185 P.3d580(2008)(quoting v. Gaines, 154 Wn.2d 711, 716, 116P.3d

993 (2005)). We review the trial court's conclusions of law de novo.

15
State V. Scherf(Byron Eugene), No. 88906-6

Even if evidence is obtained in violation of constitutional rights, the error

may be harmless. "[CJonstitutional error may be considered harmless if we are

convinced beyond a reasonable doubt that any reasonable trier of fact would have

reached the same result despite the error." State v. Thompson, 151 Wn.2d 793, 808,

92 P.3d 228(2004)(citing State v. Brown, 140 Wn.2d 456,468-69, 998 P.2d 321

(2000)). To make this determination, the court utilizes the "overwhelming

untainted evidence" test. Under this test, the court considers the untainted evidence

admitted at trial to determine if it is so overwhelming that it necessarily leads to a

finding of guilt.

Criminal Rule 3.1

Scherf was charged with aggravated first degree murder in Snohomish

County Everett Division District Court on February 24, 2011. Before February 24,

Scherf had not been charged; therefore, his Sixth Amendment right to counsel had

not attached. While Scherf references the Sixth Amendment, he relies on CrR 3.1

to argue that his videotaped confessions should be suppressed.

CrR 3.1(b)(1) states that "[t]he right to a lawyer shall accrue as soon as

feasible after the defendant is taken into custody, appears before a committing

magistrate, or is formally charged, whichever occurs earliest." Furthermore,"[a]t

the earliest opportunity a person in custody who desires a lawyer shall be provided

16
State V. Scherf(Byron Eugene), No. 88906-6

access to a telephone, the telephone number of the public defender or official

responsible for assigning a lawyer, and any other means necessary to place the

person in communication with a lawyer." CrR 3.1(c)(2). This court has never

specified what duties police officers have under CrR 3.1. The trial court held that

Scherf was taken into custody for purposes of Miranda^ the moment he was placed

in handcuffs on January 29, 2011. It also held that CrR 3.1 was not violated

because the detectives had no obligation to delay serving a warrant in order to

obtain an attorney for Scherf. The trial court noted that even if CrR 3.1 were

violated, Scherf did not make statements to police prior to validly waiving his right

to an attorney and therefore there was nothing to suppress. We conclude that

Scherfs rights under CrR 3.1 were not violated and that even if a violation

occurred, it was harmless.

The record discloses that Scherf requested an attorney on January 29, 2011,

around 9:00 p.m. He argues that CrR 3.1 was violated because he was not placed in

contact with an attorney immediately and that the State made no efforts to provide

him with an attorney. He was not provided with immediate access to a telephone

book with numbers of private attorneys and the public defender. Scherf was

provided with an attorney at 9:00 a.m. the following morning. Scherf argues that

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

17
State V. Scherf(Byron Eugene), No. 88906-6

had he been provided with an attorney immediately, he would not have made any

statements to law enforcement.

Determining whether officers have made reasonable efforts to contact an

attorney depends on the circumstances ofthe case. Court of Appeals, Division Two

has noted that the purpose of CrR 3.1 is to provide defendants with a meaningful

opportunity to contact counsel. State v. Kirkpatrick, 89 Wn. App. 407,948 P.2d

882(1997)."Although the rule does not require the officers to actually connect the

accused with an attorney, it does require reasonable efforts to do so." Kirkpatrick,

89 Wn. App. at 414(emphasis omitted); see State v. Pierce, 169 Wn. App. 533,

548, 280 P.3d 1158 (2012). In Kirkpatrick, a Lewis County detective and a Lewis

County deputy investigating a murder of a convenience store employee had

arrested the defendant. Having been advised of his Miranda rights by the detective,

Kirkpatrick gave a statement and asked if he could leave. The detective told him he

could not leave and Kirkpatrick demanded a lawyer. The detective stopped the

questioning but made no effort to contact a lawyer. The detective then drove

Kirkpatrick four hours to another county where the defendant initiated three

conversations with the detective. The detective reminded Kirkpatrick that he had

asked for an attorney and that he could not talk to him. Kirkpatrick said that he did

18
State V. Scherf(Byron Eugene), No. 88906-6

not want an attorney and wanted to talk about the case. He then described the scene

and admitted shooting the victim. Later, Kirkpatrick gave a taped confession.

The Kirkpatrick court held that the officers violated CrR 3.1 when they

made no effort to contact an attorney when the defendant first requested one. The

court cited City ofBellevue v. Ohlson^ and City ofSeattle v. Wakenighf as

examples of reasonable efforts. In Ohlson, the officer made six attempts to

telephone the arrestee's attorney. In Wakenight, the officer telephoned a public

defender and gave the arrestee a phone book and access to a phone. The court

noted that Kirkpatrick's request came several hours before confessing and that his

request came during normal working hours where "presumably procedures exist

for contacting defense counsel." Kirkpatrick, 89 Wn. App. at 415.

Similarly in Pierce, Division Two held that officers did not take reasonable

efforts to put defendant in contact with an attorney. In Pierce, the trial court held

that posting the public defender's business number next to the telephone and

allowing free access to use the phone was sufficient to satisfy CrR 3.1(c)(2).

Division Two reversed and held that merely giving an inmate access to a phone

without providing the means to contact an attorney does not satisfy CrR 3.1(c)(2).

® 60 Wn. App. 485, 487, 803 P.2d 1346(1991).

'24 Wn. App. 48, 49-50, 599 P.2d 5 (1979).

19
State V. Scherf(Byron Eugene), No. 88906-6

The court noted that the jail's own policy of dialing public defender home numbers

after hours showed the futility of simply posting the public defender's business

number after hours.

The State argues that here the delay was justified because(1)detectives

needed to obtain a search warrant,(2)there was a risk to prison security and the

lockdown of other inmates,(3)there was concern for the safety of Scherf, and (4)

restrictions were placed on the facility due to the lockdown. The State cites State v.

Mullins^ and State v. Wade^ for support. In Mullins, Division One held that

although CrR 3.1 states that a person in custody must be given the opportunity to

call a lawyer "at the earliest opportunity," police are not required to "postpone

routine prebooking procedures or the execution of a search warrant when an

arrestee expresses the desire to consult an attorney." Mullins, 158 Wn. App. at 369-

70. In Mullins, the defendant was arrested for murder. He was taken into custody

and was completing prebooking procedures at the jail when he voluntarily made

incriminating statements to the police. The detectives interrupted the defendant and

reminded him that he had previously invoked his right to an attorney. The

defendant said that he understood his rights but that he had something he wanted to

^ 158 Wn. App. 360, 241 P.3d 456(2010).

^ 44 Wn. App. 154, 721 P.2d 977(1986), abrogated by In re Pers. Restraint ofCarrier,
173 Wn.2d 791,272 P.3d 209(2012).

20
State V. Scherf(Byron Eugene), No. 88906-6

get'"off his chest.'" Mullins, 158 Wn. App. at 364. The detectives completed the

prebooking form and turned the defendant over to the jail officers, who booked

him. The procedure took about one and three quarters hours from the time the

defendant arrived at the jail. At no time did the detectives attempt to place the

defendant in contact with a lawyer. The court relied heavily on Wade, which held

that the defendant "waived his right to counsel before the police had an opportunity

to provide him with access to the phone and a list of attorneys who could possibly

defend him." Wade,44 Wn. App. at 159.

The State argues that this case is similar to Mullins and Wade\ the detectives

here did not have an opportunity to provide Scherf with an attorney due to the four

issues listed above and Scherf was provided an attorney at the earliest opportunity.

The State's argument is persuasive. Scherfs rights under the rule were not

violated because a combination ofthe detectives' investigative duties and DOC

security measures and policies precluded an earlier meeting with an attorney. The

trial court's findings of fact demonstrate that Scherf requested an attorney but

Detective Spencer Robinson was in the process of obtaining a search warrant for

collecting evidence. In addition, there was no way to contact a public defender

after hours. As soon as Detective Robinson returned at 9:00 a.m. the next morning,

he arranged to have a public defender meet Scherf.

21
State V. Scherf(Byron Eugene), No. 88906-6

Even if we were to assume arguendo that there was a violation of CrR 3.1,

the claimed violation of CrR 3.1 at issue is harmless. A violation of a court rule is

harmless if there is no reasonable probability that the error materially affected the

outcome ofthe trial. State v. Templeton, 148 Wn.2d 193, 220, 59 P.3d 632(2002).

Here, the trial court correctly concluded that Scherf did not provide any

videotaped statements prior to meeting with an attorney. Prior to the videotaped

statements Scherf met with two attorneys who both advised him to not speak to the

police. He ignored the advice of counsel and voluntarily gave videotaped

confessions. No violation of CrR 3.1 occurred.

Unlawful Detention at Snohomish Countv Jail

Scherf further argues that the trial court erred when it denied his motion to

suppress his statements because he was unlawfully detained at the Snohomish

County Jail, claiming RCW 72.68.040 and .050 were violated. RCW 72.68.040

permits the secretary ofDOC to contract with counties for detention of prisoners

sentenced to DOC in county jails:

The secretary may contract with the authorities ofthe federal
government, or the authorities of any state ofthe United States,
private companies in other states, or any county or city in this state
providing for the detention in an institution or jail operated by such
entity, for prisoners convicted of a felony in the courts ofthis state
and sentenced to a term of imprisonment therefor in a state
correctional institution for convicted felons under the jurisdiction of
the department. After the making of a contract under this section,

22
State V. Scherf(Byron Eugene), No. 88906-6

prisoners sentenced to a term of imprisonment in a state correctional
institution for convicted felons may be conveyed by the
superintendent or his or her assistants to the institution or jail named
in the contract. The prisoners shall be delivered to the authorities of
the institution or jail, there to be confined until their sentences have
expired or they are otherwise discharged by law, paroled, or until they
are returned to a state correctional institution for convicted felons for
further confinement.

When such a contract is made, notice ofthe contract is required by RCW

72.68.050 to be recorded by the clerk ofthe court from which the sentence

originated:

Whenever a prisoner who is serving a sentence imposed by a court of
this state is transferred from a state correctional institution for
convicted felons under RCW 72.68.040 through 72.68.070, the
superintendent shall send to the clerk ofthe court pursuant to whose
order or judgment the prisoner was committed to a state correctional
institution for convicted felons a notice oftransfer, disclosing the
name ofthe prisoner transferred and giving the name and location of
the institution to which the prisoner was transferred. The
superintendent shall keep a copy of all notices oftransfer on file as a
public record open to inspection; and the clerk ofthe court shall file
with the judgment roll in the appropriate case a copy of each notice of
transfer which he or she receives from the superintendent.

Scherf argues that the requirements set forth in RCW 72.68.040 and .050

were not met because there was no contract between DOC and Snohomish County

Jail and that there was no notification ofthe transfer on any public record kept by

the superintendent or the Spokane County Superior Court, as required by RCW

23
State V. Scherf(Byron Eugene), No. 88906-6

72.68.050. Scherf argues that because his detention was unlawful, the statements

obtained while he was unlawfully detained should be suppressed.

This is unpersuasive. The trial court found that it was disputed whether there

was an agreement between DOC and Snohomish County to house DOC prisoners

at the jail. However, the existence of an oral agreement is supported by an affidavit

from Deputy Superintendent Scott Frakes. A public record of the transfer was

available. Importantly, even if the statutes were violated, Scherf provides no

support as to why his statements should be suppressed as a result. No statutory

remedy exists for a violation ofthose provisions, and no basis exists otherwise.

Criminal Rule 3.2.1

Scherf next argues that his statements should be suppressed because he was

not brought before a judge "as soon as practicable" as required under CrR

3.2.1(d)(1). Scherf argues that we should adopt the McNabblMallory^^ rule and

overrule State v. Hoffman, 64 Wn.2d 445, 392 P.2d 237(1964).

In Corley v. United States)^ the United States Supreme Court established a

two-part test for applying the McNabblMallory rule. First,"a district court with a

suppression claim must find whether the defendant confessed within six hours of

McNabb v. United States, U.S. 332,63 S. Ct. 608,87 L. Ed. 819(1943); Mallory
V. United States. 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479(1957).

556 U.S. 303, 129 S. Ct. 1558, 173 L. Ed. 2d 443 (2009).

24
State V. Scherf(Byron Eugene), No. 88906-6

arrest(unless a longer delay was 'reasonable considering the means of

transportation and the distance to be traveled to the nearest available [magistrate

judge]')." Corley, 556 U.S. at 322(alteration in original). If made voluntarily,"the

confession [made] within that period,... is admissible." Corley, 556 U.S. at 322.

If, however,"the confession occurred before presentment and beyond six hours,. .

. the court must decide whether delaying that long was unreasonable or

unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be

suppressed." Corley, 556 U.S. at 322. This is true even if the confession was made

voluntarily.

In Hoffman, this court declined to adopt the McNabb rule and instead relied

on a "voluntariness" test in determining admissibility of confessions. Hoffman,64

Wn.2d at 450. If an unnecessary delay in the preliminary appearance occurs,

statements given by the accused are not automatically excluded. Rather, the court

considers delay as one factor to consider when determining whether a confession is

involuntary.

Scherf argues that CrR 3.2.1 is a "prompt presentment" rule that should

follow the McNabb!Mallory analysis. He argues that the McNabb!Mallory rule

applies here because CrR 3.2.1 serves the same primary objectives as the federal

rule:(1)judicial determination of probable cause and judicial review of conditions

25
State V. Scherf(Byron Eugene), No. 88906-6

of release and (2)to prevent unlawful detention and to eliminate the opportunity

and incentive for application ofimproper police pressure.

CrR 3.2.1(d)(1) requires, in relevant part, that "any defendant whether

detained in jail or subjected to court-authorized conditions of release shall be

brought before the superior court as soon as practicable after the detention is

commenced."

First we must decide whether the McNabblMallory rule should apply to CrR

3.2.1. Second, we must determine when Scherf was detained. If Scherf was, in fact,

detained, we must then determine whether he was brought before the court as soon

as practicable following his detention.

We decline to overrule Hoffman. This court continues to employ the

Hoffman "voluntariness" test in determining admissibility of confessions. We will

not overrule a prior decision unless there has been a clear showing that the rule it

announced is both incorrect and harmful. State v. Barber, 170 Wn.2d 854, 863-64,

248 P.3d 494(2011). A decision is incorrect if it is based on an inconsistency with

^^See Culombe v. Connecticut, 367 U.S. 568, 584-85, 81 S. Ct. 1860,6 L. Ed. 2d 1037
(1961)("Recognizing the need to protect criminal suspects from all ofthe dangers which are to
be feared when the process of police interrogation is entirely unleashed, legislatures have enacted
several kinds oflaws designed to curb the worst excesses ofthe investigative activity of the
police. The most widespread of these are the ubiquitous statutes requiring the prompt taking of
persons arrested before a judicial officer; these are responsive both to the fear of administrative
detention without probable cause and to the known risk of opportunity for third-degree practices
which is allowed by delayed judicial examination."(footnote omitted)).

26
State V. Scherf(Byron Eugene), No. 88906-6

the court's precedent, with the State's constitution or statutes, or with public policy

considerations. A decision is harmful if it has a detrimental impact on the public

interest.

Scherf points out that in Hoffman we noted that "future developments, or a

conviction that law enforcement agencies of the state are persistently indulging in

undue and extensive delays between arrest and arraignment, may dictate a

reconsideration of our position." Hoffman,64 Wn.2d at 450. However, the record

here does not indicate that there was persistent improper police pressure across the

state or that there was improper police pressure in this case. The detectives

repeatedly informed Scherf of his Miranda rights and never secretly interrogated

him. No basis has been established to overrule Hoffman.

We must next determine when Scherf was detained. Here, the trial court held

that Scherf was in custody for purposes of Miranda when he was handcuffed in the

prison chapel and brought to the shift lieutenant's office on January 29, 2011.

Scherf was moved to the Snohomish County Jail on February 1, 2011. He was

booked for the murder of Officer Biendl on February 23, 2011. He appeared before

Everett Division District Court Judge Roger Fisher the next day, February 24,

2011. He was held in the Snohomish County Jail for 22 days before being brought

before the court. The trial court concluded that Scherf was not "detained" when he

27
State V. Scherf(Byron Eugene), No. 88906-6

was moved to the Snohomish County Jail for purposes of CrR 3.2.1 because his

transfer from DOC to the Snohomish County Jail was "for his own protection, to

serve his DOC sentence in the jail, a place that was also more convenient to his

attorney, and more conducive to his safety, rather than being detained as a result of

the new crime." CP at 1248.

Scherf argues that he was detained when he was handcuffed in the prison

chapel and brought to the shift lieutenant's office and that at that time, he was

being investigated for the crime of attempted escape. This argument is

unpersuasive. The issue is whether Scherf was brought before a judge "as soon as

practicable" for the crime of murder, not attempted escape. While he may have

been in custody for purposes oiMiranda, he was not detained for purposes of CrR

3.2.1 for the crime of murder.

Next, Scherf argues that if he was not detained in the chapel, then he was

detained in the Snohomish County Jail for 22 days before he was brought before a

court and asserts that he was detained because he was being held as the result of a

new crime, not moved for his own protection. He argues that he was repeatedly

interrogated, subject to invasive search warrants, photographed, and contacted by

law enforcement for the sole purpose of investigating a new crime.

28
State V. Scherf(Byron Eugene), No. 88906-6

The trial court found that Scherf was transferred for his own protection and

that this finding of fact is supported by substantial evidence. An affidavit from

then-superintendent Scott Frakes states that Scherf was moved for his own safety.

Scherf was not arrested on the murder charge until February 23. Furthermore, the

State argues that a violation of CrR 3.2.1 does not support suppression of

statements.

We agree with the trial court's finding that Scherf was not detained until he

was booked for the murder of Officer Biendl on February 23, 2011. This case is

unusual because Scherf was already in prison serving a life sentence for another

crime. It is important to note that the two objectives noted by Scherf—(1)judicial

determination of probable cause and judicial review of conditions of release and

(2) preventing unlawful detention and eliminating the opportunity and incentive for

application ofimproper police pressure—do not support his argument here. Scherf

was already in custody serving a life without parole sentence pursuant to a prior

conviction; therefore, the judge would not be making a determination of probable

cause or reviewing conditions of release. Furthermore, the record does not

demonstrate that there was improper police pressure. Rather it shows that

detectives continued to remind Scherf of his right to an attorney and of his

29
State V. Scherf(Byron Eugene), No. 88906-6

Miranda rights. Additionally, substantial evidence supports the trial court's finding

that Scherf was moved to the Snohomish County Jail for his own safety.

Even if Scherf was detained when he was moved to the Snohomish County

Jail, the unreasonable delay would be a factor only in assessing whether his

videotaped statements were voluntary, as discussed infra.

Voluntariness

Finally, Scherf argues that his videotaped statements should have been

suppressed because they were not given voluntarily. The Fifth Amendment to the

United States Constitution states that "[n]o person .. . shall be compelled in any

criminal case to be a witness against himself." Article I, section 9 ofthe

Washington State Constitution states that "[n]o person shall be compelled in any

criminal case to give evidence against himself." The protection provided by the

state provision in this case is coextensive with that provided by the Fifth

Amendment.

"[T]he determination whether statements obtained during
custodial interrogation are admissible against the accused is to
be made upon an inquiry into the totality ofthe circumstances
surrounding the interrogation, to ascertain whether the accused
in fact knowingly and voluntarily decided to forgo his rights to
remain silent and to have the assistance of counsel."

State V. Unga, 165 Wn.2d 95, 100, 196 P.3d 645(2008)(alteration in original)

(quoting Fare v. Michael C,442 U.S. 707, 724-25,99 S. Ct. 2560, 61 L. Ed. 2d

30
State V. Scherf(Byron Eugene), No. 88906-6

197(1979)). Because the Fifth Amendment protects a person from being

compelled to testify against himself or herself, the question whether admission of a

confession constituted a violation ofthe Fifth Amendment does not depend solely

on whether the confession was voluntary. Rather,"coercive police activity is a

necessary predicate to the finding that a confession is not 'voluntary.'" Colorado v.

Connelly, 479 U.S. 157, 167, 107 S. Ct. 515,93 L. Ed. 2d 473 (1986). Thus, both

the conduct of law enforcement officers in exerting pressure on the defendant to

confess and the defendant's ability to resist the pressure are important. United

States V. Brave Heart, 397 F.3d 1035, 1040(8th Cir. 2005). A promise made by

law enforcement does not render a confession involuntary per se but is instead one

factor to be considered in deciding whether a confession was voluntary. Arizona v.

Fulminante, 499 U.S. 279, 285, 111 S. Ct. 1246, 113 L. Ed. 2d 302(1991); State v.

Broadaway, 133 Wn.2d 118, 132, 942 P.2d 363 (1997).

Other circumstances that are potentially relevant in the totality of the

circumstances analysis include the "crucial element of police coercion"; the length

ofthe interrogation; its location; its continuity; the defendant's maturity, education,

physical condition, and mental health; and whether the police advised the

defendant ofthe rights to remain silent and to have counsel present during

custodial interrogation. Withrow v. Williams, 507 U.S. 680, 693-94, 113 S. Ct.

31
State V. Scherf(Byron Eugene), No. 88906-6

1745, 123 L. Ed. 2d 407(1993); State v. Rupe, 101 Wn.2d 664, 679,683 P.2d 571

(1984)(plurality opinion).

Here, the trial court ruled that Scherf was in custody for purposes of

Miranda once he was placed in restraints in the chapel and escorted to the shift

lieutenant's office. The record supports this conclusion. Because Scherf was in

custody, his statements are admissible if, under the totality of the circumstances

surrounding the interrogation, he knowingly and voluntarily decided to forgo his

rights to remain silent and to have the assistance of counsel. Unga, 165 Wn.2d at

100.

^ Scherf argues that his videotaped statements were involuntary due to(A)his

conditions of confinement,(B)the unreasonable delay under CrR 3.2.1,(C)the

State's interference with his right to counsel, and(D)his improper confinement at

the Snohomish County Jail.

A. Conditions of Confinement

Scherf argues that his conditions of confinement at WSR rendered his

videotaped statements involuntary and that his conditions of confinement were

unconstitutional. He notes that he was not provided food, water, medicine, or

blankets. See Hoptowit v. Ray,682 F.2d 1237, 1246 (9th Cir. 1982)(adequate food

is a basic human need protected by the Eighth Amendment to the United States

32
State V. Scherf(Byron Eugene), No. 88906-6

Constitution), overruled on other grounds by Sandin v. Conner, 515 U.S. 472, 115

S. Ct. 2293, 132 L. Ed. 2d 418 (1995); Keenan v. Hall, 83 F.3d 1083, 1091 (9tli

Cir. 1996)("While prison food need not be 'tasty or aesthetically pleasing,' it must

be 'adequate to maintain health.'"(quoting LeMa/re v. Maass, 12 F.3d 1444, 1456

(9th Cir. 1993))). He argues he was denied his hygiene products, glasses, and a

Bible. See Keenan, 83 F.3d at 1091 ("[IJnmates have the right to personal hygiene

supplies such as toothbrushes and soap."). He was unable to call his mother and

wife. See Strandberg V. City ofHelena, 791 F.2d 744, 747(9th Cir. 1986)

(prisoners have a right under the First Amendment to the United States

Constitution to telephone access subject to reasonable security limitations). The

lights were on 24 hours a day. See Grenningv. Miller-Stout, 739 F.3d 1235, 1238-

39(9th Cir. 2014)("'[TJhere is no legitimate penological justification for requiring

inmates to suffer physical and psychological harm by living in constant

illumination. This practice is unconstitutional.'" {c^otmg Keenan, 83 F.3d at

1090)). He argues he was forced to relieve himselfthrough a grated hole in the

ground. See Keenan, 83 F.3d at 1090("Inadequate 'ventilation and air flow'

violates the Eighth Amendment if it 'undermines the health ofinmates and the

sanitation of the penitentiary.'"(quoting Hoptowit v. Spellman, 753 F.2d 779, 784

(9th Cir. 1985))). Scherf argues that these conditions did not change until he agreed

33
State V. Scherf(Byron Eugene), No. 88906-6

to confess in exchange for modest improvements. During the pretrial hearing, Dr.

Stuart Grassian, the defense psychiatrist, explained that harsh conditions and the

isolation of solitary confinement make people ill. He opined that Scherfs

confessions were not voluntary and that the conditions were so severe that Scherf

felt he could not continue without some relief.

The record, though, reveals that Scherf met with attorneys twice before his

first interview with police. He met with attorney Neil Friedman again before he

gave his third statement to police. The State also notes that Detectives Brad

Walvatne and Dave Bilyeu repeatedly advised Scherf of his Miranda rights. When

Scherf spoke to them, they never made any threats or promises to him. In addition,

the trial court found that Scherf was not suicidal; he appeared organized, reality

based, and not disturbed; and he was generally functioning within normal limits.

He was calm and cooperative. The interviews were conducted on Scherfs terms,

with him answering some questions but not others. Dr. Grassian noted that another

reason Scherf confessed was because he was hating himself for what he had done.

Dr. Grassian testified,"He clearly said, I mean, you know,I deserve to die; there's

nothing, there's no other punishment that is appropriate; I need to die." Verbatim

Report ofProceedings(VRP)(May 8, 2012) at 1000. Dr. Grassian also testified

34
State V. Scherf(Byron Eugene), No. 88906-6

that he believed that Scherf had confessed to a prior rape and assault because ofthe

intolerable guilt, not as a result ofthe conditions of confinement.

Even assuming the conditions at WSR and the Snohomish County Jail were

poor, the trial court found that the conditions were necessary due to health

concerns for Scherf and were for a limited amount of time. A county mental health

professional examined Scherf and opined that although he was not suicidal at that

time, she believed some restrictions would be appropriate due to safety concerns.

Once it was determined that Scherf was not a risk of harming himself, the

restrictions were relaxed. Because Scherf was informed of his Miranda rights

numerous times, he spoke to counsel before giving the videotaped statements, and

several witnesses testified that he confessed due to his feelings of guilt, we

conclude that the conditions of his confinement did not render his statements

involuntary.

B. Unreasonable Delay

Scherf next argues that he was not brought before a court until 22 days after

he was detained. If unnecessary delay in the preliminary appearance occurs,

statements given by the accused are not automatically excluded. Instead, the court

considers the delay as one ofthe factors to be taken into consideration in

determining whether the confession was involuntary. Hoffman, 64 Wn.2d at 450.

35
State V. Scherf(Byron Eugene), No. 88906-6

Here, Scherf was not detained for the crime of murder until he was booked on

February 23, 2011, as discussed supra. He was brought before a court the next day.

Therefore, no unreasonable delay occurred.

C. Interference with Right to Counsel

Scherf next argues that his right to counsel was violated and that the State

exploited the circumstances of his confinement to circumvent his right to counsel.

The record establishes that Scherfs first request for an attorney occurred at 9:00

p.m. on January 29, 2011. Detective Robinson was in the process of getting a

search warrant. As soon as Detective Robinson returned the next morning, he

immediately contacted a public defender, and Scherf was provided with an

attorney as soon as practicable. We conclude that Scherfs right to counsel was not

interfered with or otherwise violated.

D. Improper Confinement

Scherf argues that he was unlawfully transferred to the Snohomish County

Jail in violation ofRCW 72.68.040 and .050. As already discussed supra, Scherf

was not improperly held at the Snohomish County Jail, and, at best, improper

confinement at the Snohomish County Jail is a factor in assessing whether his

videotaped statements were voluntary. Under the totality ofthe circumstances, we

conclude that Scherfs videotaped statements were voluntary.

36
State V. Scherf(Byron Eugene), No. 88906-6

We affirm the trial court's denial of Scherfs motion to suppress and its

holding that(1) Scherf was not was denied access to counsel,(2)he was not held

unlawfully in the Snohomish County Jail,(3)he was not denied due process by the

prosecutor's failure to bring him promptly before the court, and(4)his statements

were voluntary under the Fourth, Fifth, Sixth, and Fourteenth Amendments.

Did the trial court err byfailing to redactportions ofScherfs videotaped
statements and admitting his "kite"?

Statements regarding A&D Ointment, Shoelaces, and Cartoon

Scherf asserts the trial court erred when it refused to redact his videotaped

statements regarding the A&D ointment and shoelaces found in the sanctuary and

the cartoon he provided Officer Biendl because these statements confused the

issues, misled the jury, or were unfairly prejudicial.

Generally, a party may assign error on appeal only on the specific ground of

the evidentiary objection made at trial. State v. Guloy, 104 Wn.2d 412,422, 705

P.2d 1182(1985). The State asserts that Scherf waived this issue because, at trial,

he objected to the statements regarding the ointment, shoelaces, and the cartoon on

the basis that they were "not relevant" generally, VRP (Jan. 16, 2013) at 1606, and

only now argues the evidence should have been redacted under ER 403. Scherf

argues that the issue was not waived because when a court considers whether

evidence is relevant, it must always conduct an BR 403 inquiry.

37
State V. Scherf(Byron Eugene), No. 88906-6

ER 403 does not control whether evidence is relevant. "Relevant evidence"

is defined under ER 401 as "evidence having any tendency to make the existence

of any fact that is of consequence to the determination ofthe action more probable

or less probable than it would be without the evidence," and its general

admissibility is defined under ER 402. ER 403, on the other hand, limits the

introduction of relevant evidence "if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion ofthe issues, or misleading the jury."

It appears that the objection raised at trial by the defense as to the ointment and the

shoelaces was based on the grounds that those statements did not tend to make the

existence of any fact more or less probable. It also appears that the defense

objected to the introduction ofthe statements pertaining to the cartoon as

"prejudicial," but when pressed by the trial court, submitted that ER 401 is "the

only objection the defense ha[d]." VRP (Jan. 16, 2013) at 1614.

Therefore, when Scherf objected to the evidence on general relevancy

grounds per ER 401,the trial court properly conducted an ER 401 analysis. It was

not also required to conduct an ER 403 analysis when Scherf failed to raise the

issue explicitly at trial. Because analyses under ER 401 and 403 are distinct, Scherf

waived the issue when he did not object on the proper grounds at trial.

38
State V. Scherf(Byron Eugene), No. 88906-6

Even if we were to assume, without deciding, that the evidence in question

was properly challenged under ER 403, no error occurred. A trial court's rulings on

relevance and its prejudicial effect under ER 402 and 403 are reviewed for abuse

of discretion. State v. Anderson,44 Wn. App. 644,652, 723 P.2d 464(1986)."A

trial court abuses its discretion if its decision is manifestly unreasonable or based

on untenable grounds or untenable reasons." In re Marriage ofLittlefield, 133

Wn.2d 39, 46-47, 940 P.2d 1362(1997).

Here, Scherf argues that the evidence is inadmissible under an ER 403

analysis. Under this analysis, we must first determine whether the trial court

abused its discretion in its determination that the evidence was relevant. The trial

court held that the evidence was relevant to show that Scherf was present in the

chapel during the murder and that Scherf knew Officer Biendl previously. Because

the threshold to admit relevant evidence is low, we conclude that the trial court did

not act unreasonably in its determination.

Next, we must determine whether the evidence's probative value was

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury. Scherf first argues the evidence is unfairly prejudicial

because it shows he disobeyed prison rules. Evidence is unfairly prejudicial when

it is likely to stimulate an emotional response instead of a rational decision. State v.

39
State V. Scherf(Byron Eugene), No. 88906-6

Beadle, 173 Wn.2d 97, 120, 265 P.3d 863(2011). It is not inadmissible merely

because it is harmful to the party opposing its admission. State v. Read, 100 Wn.

App. 776, 782,998 P.2d 897(2000), adhered to on remand, 106 Wn. App. 138, 22

P.3d 300(2001), aff'd, 147 Wn.2d 238, 53 P.3d 26(2002). Here, the evidence—

the shoelaces, the A&D ointment, and the cartoon—does not elicit an emotional

response. The fact that the evidence demonstrates Scherf broke prison rules does

not substantially outweigh the evidence's probative value.

Scherf also argues that the evidence confused the issues or misled the jury.

Scherf generally states the evidence caused jurors to speculate about what he

intended to use the evidence for or confused the jurors about what the evidence

meant. However, as Scherf argued, these items could be satisfactorily explained:

[H]e used the ointment and laces because of his running and hid them
because he knew he would be searched when he was discovered at the
chapel; these were not items he was allowed to have with him. He
explained that the cartoon had been circulating around the prison for
some time and Officer Biendl asked him for a copy of it.

Opening Br. of Appellant at 174. Furthermore, an ER 403 analysis requires the

evidence's probative value to be substantially outweighed by the danger of

confusion ofthe issues or misleading the jury. The mere fact thatjurors could

speculate about what the evidence is used for does meet this burden. Its probative

value—^that Scherf had previously been present in the chapel and knew Officer

40
State V. Scherf(Byron Eugene), No. 88906-6

Biendl—is not outweighed by the dangers enumerated in ER 403. The trial court

did not abuse its discretion.

Officer's Question regarding Murder

The defense objected to introduction oftwo questions by Detective

Walvatne as irrelevant and unfairly prejudicial because it demonstrated an opinion

that Scherf was guilty:(1)the detective's question about what Scherf would say of

Officer Biendl's death if she could hear him, and his response,"I don't wanna go

into that right now," VRP (Jan. 16, 2013) at 1615, and (2)the detective's question,

"You, you weren't sorry that she was dead?" VRP (Jan. 16, 2013) at 1620; CP at

1081, and his response.

Not at that point in time. I don't believe that I was. I mean, when I,
when I walked up to her and looked maybe I, I felt some . . . like I
said, it was, it was just a weird experience. I can't explain it. It was
like, real surreal. I mean, I just like, I don't know.

CP at 1081 (alteration in original). These questions were asked after Scherf waived

his rights and confessed to the murder of Officer Biendl. Scherf also objected to

the detective's reference of"the murder." VRP (Jan. 16, 2013) at 1654. The court

conducted an ER 403 balancing test and held that the first statement demonstrates

the police did not coerce Scherf and the second statement goes to Scherfs state of

mind. The court also determined that the statement by Detective Walvatne

referencing "the murder" was not substantially prejudicial because it "doesn't

41
State V. Scherf(Byron Eugene), No. 88906-6

really change or introduce" anything to the case. VRP (Jan. 16, 2013)at 1654,

1655.

A witness, lay or expert, may not testify about the defendant's guilt or

innocence. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12(1987). Such

testimony "violates the defendant's right to a trial by an impartial jury and her right

to have the jury make an independent evaluation ofthe facts." State v. Sanders,66

Wn. App. 380, 387, 832 P.2d 1326 (1992). Scherf argues that the detective's

questions "improperly conveyed the officers' opinion that Mr. Scherf was guilty of

murdering Officer Biendl,[and the questions] were calculated to force him to

respond to questions which assumed he was callous and unremorseful." Opening

Br. of Appellant at 176. Because ofthis, he argues, the statements were

inadmissible under ER 402 and ER 403. Yet, Officer Walvatne's questions did not

express an opinion as to Scherfs guilt; they were follow-up questions to Scherfs

confession that he murdered Officer Biendl. Because the trial court had tenable

reasons to admit the statements and the prejudicial effect was low, Scherfs

arguments are unavailing.

Statements regarding Scherfs Constitutional Rights

Scherf argues that multiple admitted statements invited the jury to infer guilt

based on his exercise of constitutional rights. These statements include:

42
State V. Scherf(Byron Eugene), No. 88906-6

(1) Detective Walvatne's statement,"Um,I have something that I need your
help with regarding a speedy resolution of my case. It will not be a waste
of your time." VRP (Jan. 16, 2013) at 1650.
(2) Scherfs statement,"Because ah, I did a lot of soul searching and um,
it's just, you know, ah, she didn't deserve to die ... so ... the bible says
if you take a life, you give a life. That's all I can say." VRP (Jan. 16,
2013) at 1634 (alteration in original); CP at 1091 (alteration in original).
(3)Scherfs statement,"I wanna be here. I, I chose to be here. Like I said. I
think in the interest of, of this family that's ah, lost their loved one and
um, everything considered that ifs just, this thing just needs to be dealt
with quickly." VRP (Jan 16, 2013) at 1646; CP at 1092.
(4)Detective Walvatne's statement,"And no disrespect to you know um, we
just, we've been thinking about a lot of stuff. And it seems like you have
a really you know you're very upset about what happened and we're
trying to get all the facts and trying to get all the answers ... for
especially Officer Biendl's family." VRP (Jan. 16, 2013) at 1665-66.
(5)The "kite" Scherf wrote to the prosecutor asking to charge him with
aggravated first degree murder and saying he would plead guilty at
arraignment. Br. of Resp't at 118.

Scherf specifically argues that these statements focused on his failure to plead

guilty and deal with the matter quickly because he was exercising his trial rights.

These arguments fail.

The State may not draw adverse inferences on a defendant's exercise of his

constitutional rights. State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006),

overruled on other grounds by State v. W.R., 181 Wn.2d 757, 336 P.3d 1134

(2014). However, not all arguments that discuss a defendant's constitutional rights

are impermissible. The question is "whether the prosecutor manifestly intended the

remarks to be a comment on that right." State v. Crane, 116 Wn.2d 315, 331, 804

43
State V. Scherf(Byron Eugene), No. 88906-6

P.2d 10(1991). In Gregory,the State argued why it was unlikely for the rape

victim to put herself through a trial. The State did not criticize the defendant's

cross-examination ofthe victim or comment on the defendant's decision to put the

victim through a trial. The court held that the arguments were proper because they

did not focus on the defendant's exercise of his constitutional rights—^the argument

merely focused on the credibility of the witness.

Similar to Gregory, the comments in this case do not focus on Scherfs

exercise of his rights. The State offered these statements to demonstrate Scherfs

reasoning for speaking with the police—^they help demonstrate that the statements

were voluntary and credible. The prosecutor never referenced Scherfs broken

promise or the fact that he was putting Officer Biendl's family through a trial.

Because the statements were not intended to comment on the exercise of Scherfs

constitutional rights, the trial court did not err.

Scherfs Comments on Penaltv

Scherf argues that the "kite," which includes Scherfs statement asking for

the death sentence, was improperly admitted because it violated the Eighth

Amendment. He argues that opinions regarding the appropriateness of the death

penalty violate the Eighth Amendment under State v. Pirtle, 127 Wn.2d 628,904

44
State V. Scherf(Byron Eugene), No. 88906-6

P.2d 245(1995)and Gregory. However, as the State correctly points out, these
\

cases deal with victim impact statements suggesting a certain penalty.

Here, Scherfs opinion regarding the appropriate sentence is not analogous

to the opinion of a victim. A victim's statement could be emotionally charged and

may elicit an emotional response. The same cannot be said for Scherfs statement.

This statement, on the other hand, could likely demonstrate a sense of

accountability and remorse. Because this case addresses Scherfs own statements,

the kite's admission did not violate the Eighth Amendment.

Scherfs Statement regarding Advice of Counsel

Scherf argues the trial court erred when it failed to redact his statements that

he had met with an attorney, he was not listening to the advice of counsel, and he

did not want counsel present during the taping session. He argues that the

statements were unnecessary, misleading, and unfairly prejudicial under ER 403.'^

As we have already discussed supra, generally, a party may assign error on

appeal only on the ground ofthe objection made at trial. Guloy, 104 Wn,2d at 422.

At trial, Scherf objected to this evidence because it was hearsay, irrelevant, more

prejudicial than probative, and "somewhat" cumulative. Scherf did not object to

the evidence on the grounds that it would mislead the jury, nor did he make this

Although Scherf says the evidence was unfairly prejudicial, he did not brief the issue.
Instead, the primary focus was whether the evidence would mislead the jury.

45
State V. Scherf(Byron Eugene), No. 88906-6

argument. The focus ofthe objection and the trial court's ruling was whether the

evidence was relevant and prejudicial. Because Scherf did not object to the

evidence on appropriate grounds at trial, he waived this challenge.

Even if we were to consider whether the evidence would mislead the jury,

Scherfs arguments are unavailing. Scherf argues that the evidence was misleading

because it created "the impression" that Scherfs right to counsel had been

"respected, facilitated or preserved," even though police did not timely provide

him access to counsel. Opening Br. of Appellant at 182. However, Scherfs

statements demonstrate that(1)he spoke with counsel before giving these

statements and (2)he was not overborne by the police. The statements were not

misleading—^they were an accurate representation ofthe facts. Here, Scherf spoke

with counsel seven days before giving his statement to the police. Any delay

Scherf points to in obtaining counsel was irrelevant in determining whether these

statements were misleading. The statements establish Scherf spoke with counsel

and that he was disregarding his attorney's advice. Because he spoke with an

attorney twice before making these statements, they were an accurate

representation ofthe facts and, thus, not misleading.

46
State V. Scherf(Byron Eugene), No. 88906-6

Did the prosecutor engage in misconduct that deprived Scherfofafair trial?

A defendant alleging prosecutorial misconduct must prove(1)the conduct

was improper and (2)he was prejudiced. State v. Emery, 174 Wn.2d 741, 760-61,

278 P.3d 653 (2012). Prejudice is analyzed under two different standards. If a

defendant timely objects, he "must show that the prosecutor's misconduct resulted

in prejudice that had a substantial likelihood of affecting the jury's verdict."

Emery, 174 Wn.2d at 760. If a defendant fails to object, he must show the

prosecutor's misconduct was so flagrant and ill intentioned that(1)"'no curative

instruction would have obviated any prejudicial effect on the jury'" and (2)the

resulting prejudice "'had a substantial likelihood of affecting the jury verdict.'"

Emery, 174 Wn.2d at 761 (quoting State v. Thorgerson, 172 Wn.2d 438,455, 258

P.3d 43 (2011)). We look at a prosecutor's comments in the context ofthe whole

argument, the issues ofthe case, the evidence addressed in argument, and the

instructions given to the jury. State v. Brown, 132 Wn.2d 529, 561,940 P.2d 546

(1997).

The Prosecutor Ingratiating Himself with Jurors

Scherf argues that the prosecutor took advantage of the seating arrangement

in the courtroom by smiling and personally thanking prospective jurors after their

individual voir dire. Scherf first objected to the prosecutor's conduct on April 5,

47
State V. Scherf(Byron Eugene), No. 88906-6

2013, after the voir dire ofjuror 17, who later sat on the jury. The court instructed

the prosecutor to "keep it to a minimum, and just a glance or something ofthat

nature." VRP(Apr. 5, 2013)at 3307. Scherf objected for a second time after the

prosecutor made eye contact and smiled atjuror 95. The court told the prosecutor

he "need not do that anymore" and that it was "of course, unfair if, by [his]

location in the courtroom,[he is] able to ingratiate [himself] with some jurors in a

way that the defense cannot." VRP (Apr. 15, 2013) at 4455. The prosecutor

responded that he had interacted this way only with jurors who were excused.

Scherf argues this contact was intended to forge a bond between the State

and the jurors in a way defense counsel could not by virtue ofthe courtroom

seating arrangement. Because this occurred after the voir dire ofjuror 83, Scherf

argues that this means every juror before 83 received this treatment as well. The

record simply does not support this assertion.

Private communications between prosecutors and jurors may invalidate the

verdict unless the State proves that the communication was harmless. Mattox v.

United States, 146 U.S. 140, 150, 13 S. Ct. 50, 36 L. Ed. 917(1892). Ifthe

communication is merely de minimis, the defendant must show the communication

was prejudicial, meaning "it raise[d] a risk of influencing the verdict," before the

burden of proof shifts to the State. Caliendo v. Warden ofCal. Men's Colony, 365

48
State V. Scherf(Byron Eugene), No. 88906-6

F.3d 691, 696-97(9th Cir. 2004). To determine whether a communication raises

the risk of influencing the verdict, we analyze five factors:(1) whether the

unauthorized communication concerned the case,(2)the length and nature ofthe

contact,(3)the identity and role at trial ofthe parties involved,(4)evidence of

actual impact on the juror, and(5)the possibility of eliminating prejudice through

a limiting instruction. Caliendo, 365 F.3d at 697-98. In weighing these factors, the

trial court's findings are entitled to some deference.

In Caliendo, the Ninth Circuit held a critical prosecution witness' 20-minute

conversation with multiple jurors, though unrelated to the case, was possibly

prejudicial, thus triggering the burden shift to the prosecution to show

harmlessness. In reversing the conviction, the Ninth Circuit noted that even though

the conversation was not relevant to the case, the incident went"beyond 'a mere

inadvertent or accidental contact involving only an exchange of greeting in order to

avoid an appearance of discourtesy.'" Caliendo, 365 F.3d at 698(quoting United

States V. Harry Barfield Co., 359 F.2d 120, 124 (5th Cir. 1966)).

Here, the prosecutor's conduct occurred during voir dire where counsel for

both sides had an opportunity to speak to the jury, so it was not unauthorized

communication. The communications, if we even characterize these actions as

such, were brief. Scherf has not presented evidence that such contact impacted

49
State V. Scherf(Byron Eugene), No. 88906-6

jurors. Also, the jurors were instructed to disregard any remark made by the

attorneys not supported by the evidence and to "not let your emotions overcome

your rational thought process." CP at 310. Scherf does not show that the

prosecutor's smiling and thanking jurors raised the risk of influencing the verdict;

any such contact was de minimis. The prosecutor's conduct did not deny Scherf a

fair trial.

Reference To Finding Officer Biendl's Bodv Lving under a Cross

During opening statements, the prosecutor described the location of Officer

Biendl's body:"And up on the stage, under the cross, they find Jayme Biendl, on

her back, blood coming out of her mouth, dead." VRP(May 1, 2013) at 6004.

Scherf did not object to this statement.

Scherf argues this statement appealed to the passions and prejudices ofthe

jury because it likened Officer Biendl to a Christ figure. A prosecutor's appeal to

the jury's '"passion and prejudice, as well as prejudicial allusions to matters

outside the evidence, are inappropriate.'" State v. Belgarde, 110 Wn.2d 504, 507,

755 P.2d 174(1988)(quoting State v. Belgarde, 46 Wn. App. 441, 448, 730 P.2d

746 (1986)). To prevail on his misconduct claim, Scherf must first show this

conduct was improper. Second, because Scherf failed to object at trial, he must

show the alleged misconduct was so flagrant and ill intentioned that(1)'"no

50
State V. Scherf(Byron Eugene), No. 88906-6

curative instruction would have obviated any prejudicial effect on the jury'" and

(2)the resulting prejudice '"had a substantial likelihood of affecting the jury

verdict.'" Emery, 174 Wn.2d at 760(quoting Thorgerson, 172 Wn.2d at 455).

Here, Scherf does not show the prosecutor's comment was improper nor

does he demonstrate that, even assuming misconduct, a curative instruction would

not have cured the alleged prejudice. The statement that Officer Biendl was found

under a cross was a fact of the case the prosecutor was entitled to use when

painting a picture of events for the jury. Nothing else in the prosecutor's opening

statements suggests this statement was meant to evoke religious sentiment in the

minds ofthe jurors; it is mere speculation to say that the statement was a deliberate

reference to Christ. The statements were not misconduct, nor were they flagrant

and ill intentioned.

Statement of the Law on Premeditation

Scherf argues that the prosecutor misstated the law on premeditation in that

the prosecutor argued that intent to kill proves premeditation even though they are

two separate elements ofthe crime. Scherf points to three parts of closing

argument he alleges were improper:

The law says premeditation must involve more than a moment
in time. All the law requires is ". . . some time, however long or short,
in which a design to kill is deliberately formed."

51
State V. Scherf(Byron Eugene), No. 88906-6

VRP(May 9, 2013) at 6898 (alteration in original).

Mr. Scott just tried to argue to you, that premeditation means a step-
by-step plan.
It doesn't. It requires "... more than a moment in point of
time."
"When a person, after any deliberation, forms an intent to take
human life, the killing may follow immediately after the formation of
the settled purpose and it will still be premeditated."
It doesn't say when you form the intent that you've got to go
buy the insurance policy, or when you're going to go dig the grave, or
when you're going to ... go get the cord, or you're going to draw a
noose. No, it's not in there. What it says is, once you have formed the
intent,"... the killing may follow immediately after the formation of
the settled purpose."

. . . The decision to be made,the premeditation, the stewing that
took place; that was done. Maybe I'll beat her up. No,not good
enough. I'm going to kill her. The decision is when it was. At what
point—at what point—^was that weapon,the strength in his hands, the
anger or the hate in his heart, at what point was the weapon locked
and loaded?

VRP(May 9, 2013) at 6936-37 (first and third alterations in original).

[I]f you have an abiding belief that when he walked through that
sanctuary door he was going to kill her, you are satisfied beyond a
reasonable doubt that he had premeditated in his design to kill her.
VRP(May 9, 2013) at 6941.

Scherf did not object at trial. Thus, Scherf must first show this conduct was

improper and then that the alleged misconduct was so flagrant and ill intentioned

that(1)"'no curative instruction would have obviated any prejudicial effect on the

52
State V. Scherf(Byron Eugene), No. 88906-6

jury'" and (2)the resulting prejudice '"had a substantial likelihood of affecting the

jury verdict.'" Emery, 174 Wn.2d at 760(quoting Thorgerson, 172 Wn.2d at 455).

Scherf does not meet this burden because the prosecutor did not misstate the law.

Premeditation is '"the mental process of thinking beforehand, deliberation,

reflection, weighing or reasoning for a period of time, however short'"—it is more

than a moment in time. State v. Bingham, 105 Wn.2d 820, 823, 719 P.2d 109

(1986)(quoting State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217(1982)). We

have previously held that there is sufficient evidence of premeditation where(1)

there were multiple wounds,(2)the defendant brought a weapon to the murder site,

(3)there was a sufficient lapse oftime,(4)there was evidence of motive, and (5)

there was planning and preparation. State v. Gentry, 125 Wn.2d 570, 598, 888 P.2d

1105 (1995).

Although Scherf argues the prosecutor's statements conflated intent to kill

and premeditation, the statements must be placed in the context of the prosecutor's

entire closing argument. In the first statement by the prosecutor, he quoted the

second half of the premeditation jury instruction, then segued into discussing

Scherfs deliberation. The prosecutor recapped the evidence that demonstrated a

plan and deliberation—^how Scherf acted to ensure there would be no witnesses or

cameras, how he stalled for time, how he checked to see if the guard for the area

53
State V. Scherf(Byron Eugene), No. 88906-6

was not around, how he closed the gate, how he first grabbed Officer Biendl's

microphone away from her, and how Officer Biendl fought back. The prosecutor's

presentation ofthe evidence was proper support for his argument of premeditation.

As for the second and third statements, the prosecutor in rebuttal was

responding to the defense's argument that a step-by-step, elaborate plan was

needed to demonstrate premeditation. The prosecutor rebutted that argument and

discussed the evidence demonstrating Scherfs plan to kill Officer Biendl,

reiterating all ofthe "the steps he had to take to orchestrate that plan." VRP(May

9, 2013) at 6937.

When looking at the prosecutor's closing argument as a whole, he did not

conflate intent to kill with premeditation. Instead, he presented a cohesive

chronology of events detailing Scherfs preparation to carry out Officer Biendl's

murder. Scherfs arguments are unpersuasive; we find no error in the prosecutor's

presentation to the jury of the law on premeditation.

Did the trial court err in refusing to give defense proposed instructions?

Scherf argues the trial court erred when it refused to give his proposed

premeditation instruction and instead gave the standard Washington Pattern Jury

Instructions defining "premeditation." 11 Washington Practice: Washington

Pattern Jury Instructions: Criminal 26.01.01, at 382(4th ed. 2016)(WPIC)reads:

54
State V. Scherf(Byron Eugene), No. 88906-6

Premeditated means thought over beforehand. When a person,
after any deliberation, forms an intent to take human life, the killing
may follow immediately after the formation ofthe settled purpose and
it will still be premeditated. Premeditation must involve more than a
moment in point oftime. The law requires some time, however long
or short, in which a design to kill is deliberately formed.

Scherf proposed a supplemental definition of premeditation be added to the WPIC:

Premeditation is the deliberate formation of and reflection upon the
intent to take a human life. It is the mental process of thinking
beforehand, deliberation, reflection, and weighing or reasoning for a
period of time, however short.

CP at 339. Scherf argued his definition drew a clearer distinction between intent to

kill and premeditation. The trial court denied his request, reasoning that the

standard instruction allows the defense to argue its theory of the case and the

undefined term "reflect" may confuse the jury. VRP(May 8, 2013) at 6825-26.

"Parties are entitled to instructions that, when taken as a whole, properly

instruct the jury on the applicable law, are not misleading, and allow each party the

opportunity to argue their theory of the case." State v. Redmond, 150 Wn.2d 489,

493, 78 P.3d 1001 (2003)(citing State v. Mark, 94 Wn.2d 520, 526,618 P.2d 73

(1980)). A trial court may refuse an instruction if it is collateral to or repetitious of

an instruction already given, in the context of all the instructions. Brown, 132

Wn.2d at 618, A trial court's refusal to give a jury instruction is reviewed for abuse

of discretion if it is based on a factual determination. State v. Walker, 136 Wn.2d

55
State V. Scherf(Byron Eugene), No. 88906-6

767, 771-72, 966 P.2d 883 (1998). It is reviewed de novo if it is based on a legal

conclusion.

Here, the trial court did not err in refusing Scherfs proposed instruction.

Our cases have consistently held that the standard jury instruction for

premeditation makes it "abundantly clear" that intent is not synonymous with

premeditation and any challenge on that basis fails. State v. Rice, 110 Wn.2d 577,

603-04, 757 P.2d 889(1988);In re Pers. Restraint ofLord, 123 Wn.2d 296, 317,

868 P.2d 835 (1994). The standard WPIC accurately states the applicable law—it

defines premeditation as more than intent and requires at least some deliberation.

WPIC 26.01.01 ("[wjhen a person, after any deliberation, forms an intent to take

human life"). The trial court gave a separate instruction defining intent:"A person

acts with intent or intentionally when acting with the objective or purpose to

accomplish a result that constitutes a crime." CP at 316. These instructions

sufficiently distinguished intent and premeditation and allowed Scherfto argue his

theory of the case. The trial court did not err in instructing the jury.

Did cumulative error deny Scherfafair trial?

Scherf asserts that he was denied a right to a fair trial under the cumulative

error doctrine. The question is whether, under the totality ofthe circumstances, a

combination of errors substantially prejudiced Scherf and denied him a fair trial. In

56
State V. Scherf(Byron Eugene), No. 88906-6

re Pers. Restraint ofCross, 180 Wn.2d 664, 690, 327 P.3d 660(2014). Because

Scherf fails to show any error, he does not establish an accumulation of error.

Conclusion

We affirm the conviction, vacate the sentence, and remand for imposition of

a life without parole sentence.

WE CONCUR:

n
kAAAA4- ■

7

57
State V, Scherf

No. 88906-6

GonzAlez, J.(concurring)—I reluctantly join the majority's vacation of

Byron Scherfs death sentence. Scherf has shown no error in his case justifying

reversal. However, I acknowledge that v. Gregory controls. No. 88086-7

(Wash. Oct. 11, 2018), http://www.courts.wa.gov/opinions/pdf/880867.pdf. I

stress that Gregory controls only because it held our death penalty statutes are

facially unconstitutional, not as applied. Id. at 19. But for the sweeping holding of

Gregory, Scherf could not show the death penalty was unconstitutional as applied

to him.

Gregory was predicated on compelling evidence that "black defendants were

four and a halftimes more likely to be sentenced to death than similarly situated

white defendants." Id. at 11 (citing Katherine BECKETT & HEATHER BVANS, The

Role OF Race in Washington State Capital Sentencing, 1981-2014, at 31-33

(Oct. 13, 2014)). A system ofjustice that administers the death penalty in a

marmer that is arbitrary and applied unequally based on race cannot withstand

constitutional scrutiny. Not affording the same relief to Scherf as Gregory would

violate basic principles of equal protection under the law, even though Scherf has

shown no prejudice from the racial discrimination that has resulted in the mercy he

gets today. Scherf has not demonstrated that he deserves such mercy. But since

Gregory controls, I concur.
State V. Scherf No. 88906-6(Gonzalez, J., concurring)