Filed
Washington State
Court of Appeals
Division Two
January 13, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51699-3-II
Respondent,
v.
DAVID DORRANCE ROQUE GASPAR, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — David Roque Gaspar appeals his convictions for four counts of first
degree child rape of his cousin, A.G. Roque Gaspar argues that the trial court violated his right
to present a defense by excluding evidence supporting his theory that A.G. fabricated the rape
allegations in order to move away from her father’s strict rules. He also argues that the trial
court erred by admitting the video of his interrogation following a CrR 3.5 hearing, because his
statements were involuntary. We disagree and affirm.
FACTS
A.G. lived in Washington with her family when she was between the ages of 9 and 11
years old. During that time she lived in a house with her parents, four sisters, A.G.’s aunt,
Graciela, and her husband, Graciela’s four children, and Graciela’s father. When A.G. was 11
years old, her parents separated, and she moved to Arizona with her mother. Two years later,
A.G. moved back to Washington to spend time with her father, Francisco.1 When A.G. was 14
1
Because several people in this document share a last name or part of a last name, this opinion
refers to some people by their first names for clarity. We intend no disrespect.
No. 51699-3-II
years old, she disclosed to her Aunt Rosa that Graciela’s son, Roque Gaspar, had sexually abused
her when she had previously lived in Washington. Shortly after, A.G. moved back to Arizona to
live with her mother.
Upon returning to Arizona, A.G. disclosed the sexual abuse to a nurse, who contacted
Arizona law enforcement. Eventually, Detective Patricia Song of the Tacoma Police Department
was assigned to the case. Detective Song contacted Roque Gaspar, who agreed to a recorded
interview with Detective Song and her colleague. The interview lasted about an hour and forty
minutes. The State ultimately charged Roque Gaspar with four counts of first degree child rape.
The trial court held a CrR 3.5 hearing regarding the admissibility of Roque Gaspar’s
statements to police. In Roque Gaspar’s memorandum concerning the CrR 3.5 hearing, he
conceded that Miranda warnings were properly given, but argued that his statements constituted
an involuntary confession due to the detective’s interrogation strategies.
At the CrR 3.5 hearing, Detective Song testified that the interview occurred in an
interview room at the criminal investigations division. Detective Song began the interview by
reading two forms to Roque Gaspar—permission to record the interview and an advisement of
his rights. Roque Gaspar waived his rights and signed the permission to record form.
At one point during the interview, Detective Song told Roque Gaspar he would be “in a
world of hurt.” Verbatim Report of Proceedings (VRP) at 41. Detective Song explained that she
meant that Roque Gaspar would appear dishonest in the interview recording and “might have to
pay for what he did in court.” VRP at 41. At no point did Detective Song or her colleague
directly threaten Roque Gaspar. Roque Gaspar was not placed in handcuffs or other restraints
during the interview. Detective Song acknowledged using deception during the interview, such
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No. 51699-3-II
as presenting the scenario to Roque Gaspar that perhaps he had engaged in a consensual sexual
relationship with A.G., despite that A.G. was nine years old at the time.
Roque Gaspar testified at the CrR 3.5 hearing as follows. Roque Gaspar graduated from
high school after being held back a year as a sophomore because he failed to do his homework.
He did not have a learning disability and was pretty smart. After high school, he worked at a
farm as a warehouse worker. After witnessing police arrest his uncle, Roque Gaspar developed a
fear of authority. During his interview at the police station, the detectives read Roque Gaspar his
constitutional rights. Roque Gaspar originally told detectives that he had not had intercourse
with A.G. but later admitted to some sexual activity between the two because the detectives
made it seem as though it would be okay compared to the original accusations. No one made
any threats or promises to him during his interview.
The trial court failed to file written findings of fact and conclusions of law as required by
CrR 3.5, but instead issued oral findings and conclusions. The trial court noted that there were
no disputed facts, and that the parties agreed that Miranda warnings were appropriately given.
The trial court concluded that the deceptive statements made by Detective Song, such as
suggesting that Roque Gaspar possibly had a consensual relationship with nine-year-old A.G.,
did not rise to the level of overcoming Roque Gaspar’s free will. The trial court also concluded
that Detective Song did not induce Roque Gaspar to make any statements. The trial court stated,
“[T]his was not a case where the detectives were overbearing. They were not in the defendant’s
face. They were not loud. I did not find them aggressive. They were relatively gentle, I would
say, in their questioning of the defendant.” VRP at 100. The trial court further concluded that
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No. 51699-3-II
the length of the interrogation was not unduly long and that the location of the interrogation at
the police station was not unduly coercive.
The trial court concluded that Roque Gaspar’s condition, maturity, education, physical
condition, and mental health was sufficient for him to knowingly, voluntarily, and intelligently
waive his constitutional rights. Finally, the trial court concluded that the statements made by
Roque Gaspar during his interrogation were admissible.
The State filed a motion in limine to “[e]xclude any evidence or argument suggesting that
A.G. was promiscuous or that she received text messages from several boys.” Clerk’s Papers
(CP) at 16. This was based on discovery evidence that A.G.’s aunt, a defense witness, “did not
believe A.G.’s disclosure because she was receiving a lot of texts from different boys.” CP at
16. Roque Gaspar opposed the State’s motion in limine, arguing that he should be permitted to
admit evidence that “A.G.’s motive for making her allegations against the defendant and
requesting that she be flown back to her mother’s home in Arizona was her unhappiness with her
father’s accusations that she was socializing with boys too often.” CP at 72.
At a hearing on the motion, Roque Gaspar opposed the State’s motion in limine,
explaining his intention to offer testimony from A.G.’s aunt that A.G. had been receiving text
messages from boys around the time she made her allegations, which led to conflict between
A.G. and her conservative family, giving her motive to fabricate rape allegations. The trial court
reserved ruling on the issue and instructed Roque Gaspar to bring up the issue outside the
presence of the jury before raising the topic with any witness.
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Prior to opening statements, the parties and the trial court attempted to clarify the trial
court’s position on the State’s motion in limine. The trial court explained:
I think what we need to do for opening . . . is avoid those issues, because I’m not
going to rule on those before opening. And so the issue of promiscuity, whether
this comes from text messages or comes from—there’s at least one statement I
remember in the disputed video about—where Detective Song, I believe, said
that—I haven’t made rulings on that, so I think that needs to be avoided in opening
statement.
VRP at 431.
In his opening statement, Roque Gaspar argued that A.G. made up the story of him raping
her in order to move away from her father’s strict home.
She was looking forward to a coming-out party . . . it’s called a quinceanera. And
what happened was, over a period of time . . . her family—they’re very
conservative, and they had some concerns about her behavior . . . . She was upset
with her father, with her—and with her aunts because she felt like she was under
surveillance. She was unhappy—she was happy when she came back, but then she
became unhappy, and it was at that time that she came up with this story about
being raped by [Roque Gaspar].
VRP at 446. He continued, “These rapes never happened. This was an unhappy adolescent,
unhappy with where she was. She wanted to get out of living up here. She has not been back
since. She’s—now she gets what she wants.” VRP at 450.
Prior to Roque Gaspar’s cross-examination of A.G., the parties and the trial court
revisited the pending motion in limine. Roque Gaspar explained that he intended to elicit
testimony from A.G. that she was talking to boys and that her father was not happy about it. The
trial court ruled that line of questioning admissible. On cross-examination, Roque Gaspar asked
A.G. whether her father questioning her about a neighborhood boy upset her. A.G. said it did
not.
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No. 51699-3-II
A.G.’s father, Francisco, testified in Roque Gaspar’s defense. He testified that he
canceled A.G.’s quinceanera after he saw her kissing a boy. Francisco recalled that a week or
two after he cancelled the quinceanera, A.G. made her allegations against Roque Gaspar.
Roque Gaspar presented his closing argument:
Her father starts putting some very strict rules on her. And frankly they were a little
bit—I mean, they weren’t—it wasn’t a 21st century approach to this, I would have
to say that. Father is telling her, “I’m going to watch you and I don’t want you to
do certain things.” It had to do with boys, but that’s got really nothing to do with—
the reason isn’t important. What’s important is that he was restricting who she
could associate with, and he was—he was watching her, and Aunt [Rosa] was
watching her. Rosa . . . was watching her too. So the father says at a point, “I’m
going to cancel the quinceanera.”
....
Now, when the father—when he told her that that quinceanera was
cancelled because of her behavior, what he thought was bad behavior on her part—
it’s kind of restrictive, to be honest—she was just—anyway. Then she indicated,
“I want to go back to Arizona. If that’s the way you feel, Dad, I want to go home.”
And then he says, “I can’t have you flying back and forth. You need to stay here.”
You know. So he reveals to her he’s changing the custody arrangement. He wants
her to stay here. She—and she’s now unhappy about staying here, and then she has
the—then she has her Aunt Rosa also chastising her for what she’s doing. “I’ve
seen you walking into a house with a boy.” So at that point she—she says—and
it’s interesting. This is when she starts talking about being raped. It’s after she’s
been told that the quinceanera’s cancelled, and that made her angry, and that father
insists on having her stay in—with him. So then she says, “I want to go home.”
. . . Once she revealed the rapes—the alleged rapes—her story, then within
a couple of days, father’s taking her to the airport, flying her back to Arizona, and
then she’s lived there ever since. She’s out of this restrictive environment where
certain things can’t—where her life is circumscribed. And so there’s—there’s a
possible motive.
CP at 1359-62.
The jury found Roque Gaspar guilty of all four charges. Roque Gaspar appeals.
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No. 51699-3-II
ANALYSIS
I. RIGHT TO PRESENT A DEFENSE
Roque Gaspar argues that the trial court erred by excluding evidence supporting his
theory that A.G. fabricated the rape allegations in order to move away from her father’s strict
rules and as a result, violated his right to present a defense. We disagree.
A. Legal Principles
Criminal defendants have a constitutional right to present a defense. U.S. CONST.
amends. V, VI, XIV; WASH. CONST. art. I, §§ 3, 22; Chambers v. Mississippi, 410 U.S. 284, 294,
93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). This includes the right to, in the opening statement,
refer to admissible evidence expected to be presented at trial. See State v. Piche, 71 Wn.2d 583,
585, 430 P.2d 522 (1967). However, “[t]his right is not absolute.” State v. Arredondo, 188
Wn.2d 244, 265, 394 P.3d 348 (2017). It does not extend to irrelevant or inadmissible evidence.
State v. Wade, 186 Wn. App. 749, 764, 346 P.3d 838 (2015). “Defendants have a right to present
only relevant evidence.” State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). “The
accused does not have an unfettered right to offer testimony that is incompetent, privileged, or
otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410,
108 S. Ct. 646, 98 L. Ed. 2d 798 (1988). The defendant’s right to present a defense is subject to
“established rules of procedure and evidence designed to assure both fairness and reliability in
the ascertainment of guilt and innocence.” Chambers, 410 U.S. at 302; State v. Cayetano-
Jaimes, 190 Wn. App. 286, 296, 359 P.3d 919 (2015).
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No. 51699-3-II
“Whether the exclusion of testimony violated the defendant’s Sixth Amendment right to
present a defense depends on whether the omitted evidence evaluated in the context of the entire
record creates a reasonable doubt that did not otherwise exist.” State v. Duarte Vela, 200 Wn.
App. 306, 326, 402 P.3d 281 (2017), review denied, 190 Wn.2d 1005 (2018). To prevail on a
claim that he was deprived of his Sixth Amendment right, the defendant must at least make some
plausible showing of how the excluded evidence would have been both material and favorable to
his defense. State v. Gonzalez, 110 Wn.2d 738, 750, 757 P.2d 925 (1988); see also United States
v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982).
We review de novo whether the trial court violated a defendant’s Sixth Amendment right.
State v. Arndt, No. 95396-1, slip op. at 12 (Wash. December 5, 2019)
http://www.courts.wa.gov/opinions/. However, we review a trial court’s evidentiary rulings
under an abuse of discretion. Arndt, No. 95396-1, slip op. at 12. Accordingly, we apply this
two-step review process to review the trial court’s evidentiary rulings for an abuse of discretion
and to consider de novo the constitutional question of whether these rulings deprived Roque
Gaspar of his Sixth Amendment right to present a defense. Arndt, No. 95396-1, slip op. at 12.
B. No Abuse of Discretion
Roque Gaspar contends that the trial court erred by originally reserving ruling on the
State’s motion in limine because it prevented him from giving specific examples of A.G.’s
behavior during his opening statement and by limiting his ability to cross-examine A.G. But the
record does not support Roque Gaspar’s contention.
A court has discretion to control the content of opening statements. State v. Kroll, 87
Wn.2d 829, 835, 558 P.2d 173 (1976). We review a court’s exercise of that discretion for abuse.
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No. 51699-3-II
Kroll, 87 Wn.2d at 835. While a defendant’s right to present a defense extends to his opening
statement, he has no constitutional right to refer to irrelevant and inadmissible evidence. Jones,
168 Wn.2d at 720; Piche, 71 Wn.2d at 585.
Prior to opening statements, the trial court attempted to clarify its ruling and advised
Roque Gaspar to avoid the issue of promiscuity or text messages during his opening statement.
On appeal, Roque Gaspar argues that he should have been permitted to reference that A.G. had
been seen texting boys in order to fully present his defense theory. But Roque Gaspar fails to
show that the evidence was relevant and admissible. Whether A.G. was texting boys had no
bearing on Roque Gaspar’s defense theory. Accordingly, we hold that the trial court’s
instruction to avoid the reference during opening arguments was not an abuse of discretion.
Additionally, the record does not show that the trial court limited Roque Gaspar’s cross-
examination of A.G. When the parties and the trial court revisited the motion in limine prior to
Roque Gaspar’s cross-examination of A.G., the trial court did not place any limitations on what
Roque Gaspar indicated he would attempt to elicit. During cross-examination, Roque Gaspar
asked A.G. about how her father’s lecturing and questioning her about boys made her feel, and
she responded that it did not upset her.
Similar discussions surrounding the motion in limine and potential witness testimony
occurred outside the presence of the jury during the testimonies of Francisco and Aunt Rosa. In
both instances, the trial court inquired as to what evidence Roque Gaspar expected to elicit. And
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No. 51699-3-II
at no time did Roque Gaspar make an offer of proof for any relevant evidence that the trial court
ruled inadmissible.2
We conclude that the trial court exercised appropriate discretion in navigating the motion
in limine throughout trial. “We are mindful that ‘[t]he trial court has a gatekeeping function
under the rules of evidence,’” which “necessarily entails making judgment calls as to what the
jury may hear.” Arndt, No. 95396-1, slip op. at 29 (alteration in original) (quoting State v. Ellis,
136 Wn.2d 498, 540, 963 P.2d 843 (1998)). Because the trial court’s decisions were based on
tenable grounds, it did not abuse its discretion.
C. Sixth Amendment Right To Present a Defense
Because a defendant’s constitutional right to present a defense is not absolute, the State’s
interest in excluding evidence must be balanced against the defendant’s need for the information
sought to be admitted. Arndt, No. 95396-1, slip op. at 29. In some instances, evidence is of such
high probative value that no State interest can be compelling enough to preclude its introduction
consistent with constitutional principles. Arndt, No. 95396-1, slip op. at 29.
2
Roque Gaspar argues that the trial court erred by apply the rape shield statute to this case
because the evidence at issue was of A.G.’s behavior after the incidents and therefore did not
qualify as “past sexual behavior.” Br. of Appellant at 2. The rape shield statute limits the ability
of either party to introduce evidence of the past sexual behavior of a complaining witness. RCW
9A.44.020(2). The admissibility of evidence under the rape shield statute is within the discretion
of the trial court. State v. Aguirre, 168 Wn.2d 350, 363, 229 P.3d 669 (2010). But because
Roque Gaspar cannot point to any relevant evidence that was excluded from trial, we do not
address this issue. However, we note that “[t]he purpose of the rape shield statute is to prevent
prejudice arising from promiscuity and by suggesting a ‘logical nexus between chastity and
veracity.’” State v. Sheets, 128 Wn. App. 149, 155, 115 P.3d 1004 (2005) (quoting State v.
Peterson, 35 Wn. App. 481, 485, 667 P.2d 645 (1983)). Given the policy purpose of the rape
shield statute, it logically follows that the statute would extend to sexual behavior after the
incident forming the basis of the charges.
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Here, the trial court’s rulings and comments did not preclude Roque Gaspar from
presenting his defense theory. As Roque Gaspar acknowledges on appeal, he was able to
introduce his defense theory in his opening statement, introduce evidence that A.G. was seen
going into a house with a boy, introduce evidence that A.G. was seen kissing a boy, introduce
evidence that A.G.’s father canceled her quinceanera because of her interactions with boys, and
argue during closing argument that A.G. fabricated the rape allegations because she wanted to
move away from her father’s strict rules. Roque Gaspar fails to show how the trial court’s
evidentiary rulings meaningfully impacted his ability to present his defense theory. Cf. Jones,
168 Wn.2d at 721 (holding that the trial court prevented Jones from presenting a meaningful
defense by excluding essential facts of high probative value whose exclusion effectively barred
Jones from presenting his entire defense theory).
Accordingly, we hold that the trial court did not abuse its discretion by exercising its
gatekeeping function and did not deprive Roque Gaspar of his Sixth Amendment right to present
a defense.
II. INTERROGATION VIDEO
Roque Gaspar also argues that the trial court erred by admitting the statements he made
during his police interrogation. We disagree.
We review the trial court’s decision after a CrR 3.5 hearing to determine whether
substantial evidence supports the trial court’s findings of fact and whether those findings support
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No. 51699-3-II
the conclusions of law.3 State v. Hughes, 118 Wn. App. 713, 722, 77 P.3d 681 (2003).
“Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the
truth of the finding.” State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002) (quoting
State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)). Further, we review the trial court’s
conclusions of law de novo. Solomon, 114 Wn. App. at 789.
Both the Fifth Amendment to the United States Constitution and article I, section 9 of the
Washington Constitution protect a person from being compelled to give evidence against
himself. State v. Unga, 165 Wn.2d 95, 100-01, 196 P.3d 645 (2008). To be admissible, a
defendant’s statements must be voluntary. Unga, 165 Wn.2d at 100. We consider the totality of
the circumstances to determine whether a defendant’s statements were voluntary. Unga, 165
Wn.2d at 100. Generally, “‘coercive police activity is a necessary predicate’” to finding that a
defendant’s statements are not made voluntarily. Unga, 165 Wn.2d at 101 (quoting Colorado v.
Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986)). We will not overturn the
trial court’s determination that statements were voluntarily made if there is substantial evidence
in the record from which the trial court could find voluntariness by a preponderance of the
evidence. State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991).
Circumstances that are potentially relevant in the totality-of-the-
circumstances analysis include the “crucial element of police coercion;” the length
of the interrogation; its location; its continuity; the defendant’s maturity, education,
physical condition, and mental health; and whether the police advised the defendant
3
The trial court’s failure to reduce its CrR 3.5 findings and conclusions to writing is harmless if
the trial court’s oral findings in the record are sufficient to allow appellate review. State v.
Thompson, 73 Wn. App. 122, 130, 867 P.2d 691 (1994). Here, the trial court rendered detailed
oral findings of fact and conclusions of law. Neither party disputes that these oral findings and
conclusions are sufficient to facilitate this court’s review.
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No. 51699-3-II
of the rights to remain silent and to have counsel present during custodial
interrogation.
Unga, 165 Wn.2d at 101 (quoting Withrow v. Williams, 507 U.S. 680, 693-94, 113 S. Ct.
1745, 123 L. Ed. 2d 407 (1993)). A detective’s psychological ploys during interrogation may
play a part in a suspect’s decision to confess, “‘but so long as that decision is a product of the
suspect’s own balancing of competing considerations, the confession is voluntary.’” Unga, 165
Wn.2d at 102 (quoting Miller v. Fenton, 796 F.2d 598, 605 (3d Cir.1986)). The primary
question is whether the interrogating detective’s statements were so manipulative or coercive that
they deprived the suspect of his ability to make an unconstrained, autonomous decision to
confess. Unga, 165 Wn.2d at 102.
Here, Roque Gaspar contends that because he was held back a year in high school, afraid
of authority, and interrogated in a police interview room he was more susceptible to the
psychological coercion of the detective’s questioning. He likens this case to United States v.
Preston, 751 F.3d 1008 (9th Cir. 2014). There, the Ninth Circuit held that the use of coercive
interrogation methods on a suspect with “severe intellectual impairment” resulted in an
involuntary confession. Preston, 751 F.3d at 1027-28. However, the facts of Preston are easily
distinguished from the facts of this case.
Preston was 18 years old with an IQ of 65 at the time of his interrogation. Preston, 751
F.3d at 1020. His intellectual impairment was so clear to the investigating officers that they
asked him if he was “disabled,” but Preston had to ask for an explanation of the meaning of
“disabled.” Preston, 751 F.3d at 1020-21. A psychological evaluation of Preston revealed that
Preston had
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a “very impaired” ability to understand “everyday interpersonal exchanges as well
as . . . formal legal” exchanges. “[A]ny English verbal material must be repeated,
reinforced, and then revisited.” Without such repetition, “he may easily confuse
the content of a conversation and give . . . spurious responses” or be misled. Thus,
“[h]is relatively poor verbal linguistic fluency is likely to result in misunderstanding
of directions or translate into delayed, unconventional, or inappropriate responses
in verbal settings.” Preston also finds “complexity . . . confusing” and has trouble
understanding abstract terms. He has difficulty following “simultaneous
communication,” such as from two individuals speaking at once. Where there are
two messages, Preston has trouble “sorting . . . out” what they are saying “and
deciding how to respond.” “[T]o set up the potential for him to understand
something, you have to use rather simple, concrete terms.”
Preston, 751 F.3d at 1021 (alterations in original). In contrast, Roque Gaspar testified at the CrR
3.5 hearing that he was “a pretty smart person,” who had been held back during his sophomore
year of high school due to not doing his homework. RP at 60. Roque Gaspar was gainfully
employed and self-sufficient. The record supports the trial court’s conclusion that Roque
Gaspar’s condition, maturity, physical condition, and mental health provided him the ability to
knowingly, voluntarily, and intelligently waive his constitutional rights.
The record further supports the trial court’s conclusion that the location, duration, and
methods of the interrogation were not so manipulative or coercive that they deprived Roque
Gaspar of his ability to make unconstrained, autonomous decisions. The interrogation lasted
approximately one hour and forty minutes. As seen in the interrogation video, this included
breaks and many long pauses between questions. The video shows that the detectives were not
overbearing or loud. And although Detective Song warned Roque Gaspar that he would be in a
“world of hurt” if he did not admit to having intercourse with A.G., considering the totality of the
circumstances, the trial court did not err when it ruled that Detective Song’s tactics were not so
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manipulative or coercive that they deprived Roque Gaspar of his ability to make an autonomous
decision to confess.
Accordingly, we hold that the trial court did not err by concluding that the statements
made by Roque Gaspar during his interrogation were admissible and denying Roque Gaspar’s
motion to suppress.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, P.J.
We concur:
Sutton, J.
Cruser, J.
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State Of Washington, V David Roque-gaspar
Combined Opinion