IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE
                                                                                              CP Ca
STATE OF WASHINGTON,                      )      No. 72734-6-1
                                          )
                           Respondent,    )                                                    -n
                                          )                                           CD             r,-,
                                                                                                tnr-rtc
                 v.                       )      UNPUBLISHED OPINION
                                          )
YUSUF HAISE SHIRE,                        )                                           *"..9
                                                                                       CJ1       cn
                                          )
                           Appellant.     )      FILED: January 30, 2017

       SCHINDLER,     J. — By amended information, the State charged Yusuf Haise Shire

and Mohamed Ibrahim with assault of Mardillo Barnes, Vincent Williams Jr., and Berket

Kebede in the first degree while armed with a firearm and unlawful possession of a

firearm in the first degree. The jury convicted Shire of three counts of the lesser

included offense of assault in the second degree while armed with a firearm and

unlawful possession of a firearm in the first degree. Shire contends he is entitled to

dismissal of the convictions because double jeopardy barred retrial. Shire also seeks

reversal on the grounds that the court erred by denying his motion to suppress custodial

statements and denying his request for a material witness warrant. In the alternative,

Shire asserts his attorney provided ineffective assistance of counsel by failing to timely

request a material witness warrant. In the linked case, State v. Ibrahim, No. 72753-2-1

(Wash. Ct. App. Jan. 30, 2017), we considered and rejected the argument that double
No. 72734-6-1/2


jeopardy barred retrial and that the court erred in denying the request to issue a material

witness warrant. In this appeal, we also conclude the court did not err in denying the

motion to suppress and Shire cannot show ineffective assistance of counse1.1 We

affirm the jury convictions but remand to correct a scrivener's error in the judgment and

sentence.

Motion to Suppress Custodial Statements

        Shire contends the court erred by admitting custodial statements he made to

police. Shire asserts the statements were made in response to custodial interrogation.

The State asserts the statements were not the result of an interrogation.

        Under the Fifth Amendment, "No person shall be . . . compelled in any criminal

case to be a witness against himself." U.S. CONST. amend. V. In Miranda v. Arizona,

384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court

adopted "[p]rocedural safeguards" to protect the privilege and require warnings before

questioning an individual in custody.2 If an individual invokes his right to remain silent,

the police must cease questioning. Miranda, 384 U.S. at 473-74; State v. Cross, 156
Wash. 2d 580, 619, 132 P.3d 80 (2006). However, statements made "freely and

voluntarily" are not barred by the Fifth Amendment. Miranda, 384 U.S. at 478.

        Confessions remain a proper element in law enforcement. Any statement
        given freely and voluntarily without any compelling influences is, of course,
        admissible in evidence. The fundamental import of the privilege while an
        individual is in custody is not whether he is allowed to talk to the police



       1 The facts are more fully set forth in the linked case, State v. Ibrahim, No. 72753-2-1 (Wash. Ct.
App. Jan. 30, 2017), and will be repeated only as necessary.
       2 The police must clearly inform the suspect:
       [That he has the right to remain silent, that anything he says can be used against him in
       a court of law, that he has the right to the presence of an attorney, and that if he cannot
       afford an attorney one will be appointed for him prior to any questioning if he so desires.
Miranda, 384 U.S. at 478-79.


                                                     2
No. 72734-6-1/3

        without the benefit of warnings and counsel, but whether he can be
        interrogated. There is no requirement that police stop a person who
        enters a police station and states that he wishes to confess to a crime, or
        a person who calls the police to offer a confession or any other statement
        he desires to make. Volunteered statements of any kind are not barred by
        the Fifth Amendment and their admissibility is not affected by our holding
        today.

Miranda, 384 U.S. at 478.

        In Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980),

the Supreme Court addressed the meaning of "interrogation" under Miranda. The Court

concluded "interrogation" under Miranda "refers not only to express questioning, but

also to any words or actions on the part of the police. . . that the police should know are

reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at

301.3

                We conclude that the Miranda safeguards come into play whenever
        a person in custody is subjected to either express questioning or its
        functional equivalent. That is to say, the term "interrogation" under
        Miranda refers not only to express questioning, but also to any words or
        actions on the part of the police (other than those normally attendant to
        arrest and custody) that the police should know are reasonably likely to
        elicit an incriminating response from the suspect.

Innis, 446 U.S. at 300-01;4 see also In re Pers. Restraint of Cross, 180 Wash. 2d 664, 685,

327 P.3d 660 (2014). In determining whether any words or actions of the police are

reasonably likely to elicit an incriminating response, we focus "primarily upon the

perceptions of the suspect, rather than the intent of the police." Innis, 446 U.S. at 301;

see also Cross, 180 Wash. 2d at 685; State v. Sargent, 111 Wash. 2d 641, 651, 762 P.2d
1127 (1988).




        3   Footnote omitted.
        4   Footnote omitted.


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No. 72734-6-1/4

         We review a trial court's findings of fact following a CrR 3.5 hearing for

substantial evidence and review de novo whether the findings support the conclusions

of law. State v. Radcliffe, 164 Wash. 2d 900, 907, 194 P.3d 250 (2008); State v.

Broadaway, 133 Wash. 2d 118, 131, 942 P.2d 363 (1997); State v. Duncan, 146 Wash. 2d
166, 171,43 P.3d 513 (2002). In determining if police engaged in "interrogation" for

Miranda purposes, "we defer to the trial court's findings of fact but review its legal

conclusions from those findings de novo." Cross, 180 Wash. 2d at 681. Unchallenged

findings of fact are verities on appeal. State v. Lorenz, 152 Wash. 2d 22, 30, 93 P.3d 133

(2004).

         There is no dispute Shire was in custody. The unchallenged findings of fact

state:

                 1.     THE UNDISPUTED FACTS: The defendants were stopped
         in a white 1996 Toyota Camry at approximately 1:40 AM on May 18, 2013
         after. . . Seattle Police Department officers learned that the Toyota Camry
         that was suspected to be involved in a shooting that had just occurred.
         After a felony stop was conducted by several Seattle Police Department
         officers, all of the occupants were ordered out of the Camry.

         There is no dispute Officer Shelley San Miguel read Shire his Miranda rights.

Shire stated he understood his rights and "he did not want to speak about the shooting."

The unchallenged findings establish Officer San Miguel did not ask Shire any questions.

The unchallenged findings of fact state:

                Officer Shelley San Miguel arrived at the location of the stop just as
         defendant Shire was being removed from the vehicle. The officer
         contacted defendant Shire, placed him into handcuffs, and walked him
         back to Officer Elias's patrol vehicle. There, the [officer] apprised
         defendant Shire of his Miranda warnings. Defendant Shire indicated that
         he understood, and advised the officers that he did not want to speak
         about the shooting. He was not asked any further questions about the
         incident.




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No. 72734-6-1/5


       But the unchallenged findings of fact establish that "Officer San Miguel did,

however, inform defendant Shire of the reason for his arrest." Officer San Miguel told

Shire that "the vehicle was a possible suspect vehicle in an incident a few blocks away"

and that "we had stopped the vehicle and were detaining all the occupants inside while

we conduct an investigation." Shire "then stated that he was not involved in anything

and had just been picked up by his friends."

       Officer San Miguel was the only Witness to testify at the hearing on the

admissibility of the custodial statements made by Shire. Officer San Miguel testified

that the statement she made to Shire about "why he was being stopped" was not

"framed . . . as a question."

       The State argued the statements were admissible. The State asserted the

testimony established Officer San Miguel read Shire his Miranda rights and Shire

exercised his right not "to answer any of the questions." And "after that point," all Officer

San Miguel did was inform Shire of "the reason for his arrest."

               All the Officer did after that point was inform Mr. Shire the reason
       for his arrest; that being that they were investigating some suspicious
       circumstances involving a shooting. And as the Officer noted, that
       statement[ ] wasn't intended to — intended to elicit a response, it wasn't a
       question. It certainly wasn't coerced in any manner. And — and really,
       the Officer didn't believe that there was going to be any response made by
       Mr. Shire to that statement.

       Shire's attorney argued the question of whether the statement of Officer San

Miguel was interrogation is an objective not a subjective determination.

       Innis clearly defines interrogation under Miranda as not only express
       questioning, but also words or actions on the part of the police that the
       police should know are reasonably likely to elicit an incriminating response
       from the suspect. The latter portion of this definition focuses primarily on
       the perceptions of the suspect rather than the intent of the police. . . .




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No. 72734-6-1/6


      [T]he standard is an objective one, focusing on what the officer knows or
      ought to know will be the result of his words and acts. The subjective
      intentions of the officer are not at issue.

      The court ruled Shire was not subject to interrogation and the statements he

made were admissible.

              When it comes to the statements of Mr. Shire to Officer San Miguel,
      the issue here is whether Officer San Miguel's statement basically
      articulating for Mr. Shire the reason for his detention, whether or not that is
      objectively designed to elicit statements in violation of Miranda. In this
      particular case I think the statements were innocuous, they were
      informative only, they weren't intended or designed, or objectively
      requiring a response on behalf of Mr. Shire.

      The written conclusions of law state, in pertinent part:

             Statements by Defendant Yusuf Shire: When defendant Shire was
      taken into custody, he was appropriately apprised of his Miranda warnings
      and exercised his right to remain silent. Defendant Shire was not
      questioned thereafter. Officer San Miguel, however, did make an
      innocuous statement about the reason for the arrest. This statement was
      not a question, nor was it intended to elicit a response from defendant
      Shire. As a result, defendant Shire's statement made in response does
      not implicate the protections afforded by Miranda. Defendant Shire's
      response was spontaneously and voluntarily made and is admissible for
      CrR 3.5 purposes.

      Shire challenges the conclusion of law on the grounds that the court erred in

focusing on Officer San Miguel's subjective intent rather than on the objective

determination of whether Officer San Miguel should have known that telling Shire why

he was under arrest was likely to elicit an incriminating response. The record does not

support Shire's argument.

       The written conclusions of law specifically incorporate by reference the "oral

findings and conclusions." The court's oral ruling clearly shows the court applied the

correct standard in determining whether Officer San Miguel's statement was objectively

likely to elicit an incriminating response. The court expressly states that it considered



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No. 72734-6-1/7


"whether Officer San Miguel's statement basically articulating for Mr. Shire the reason

for his detention, whether or not that is objectively designed to elicit statements in

violation of Miranda."5 The court ruled the officer's statements "were informative only,

they weren't intended or designed" to "objectively" require a response from Shire. The

record also does not support the argument that telling Shire why he was under arrest

was reasonably likely to elicit an incriminating response.

       Because the court used an objective standard in concluding Shire's statement to

Officer San Miguel was not the product of interrogation, the court did not err in admitting

the statement Shire made to police. See United States v. Crisco, 725 F.2d 1228, 1232

(9th Cir. 1984).

Ineffective Assistance of Counsel

       Shire contends his attorney provided ineffective assistance of counsel by failing

to timely request a material witness warrant for Kebede.

       "Ineffective assistance of counsel is a fact-based determination, and we review

the entire record in determining whether a defendant received effective representation

at trial." State v. Carson, 184 Wash. 2d 207, 215-16, 357 P.3d 1064 (2015); State v. Grier,

171 Wash. 2d 17, 34, 246 P.3d 1260 (2011). Shire bears the burden of establishing that

defense counsel's performance fell below the standard of reasonableness and was

"deficient," and that deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Bowerman, 115 Wash. 2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in

Strickland). If a defendant fails to establish either prong, we need not inquire further.



       5   Emphasis added.


                                              7
No. 72734-6-1/8

Strickland, 466 U.S. at 697; State v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563

(1996).

      Shire cannot show deficient performance. "Deficient performance is performance

falling 'below an objective standard of reasonableness based on consideration of all the

circumstances.'" State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009) (quoting

State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995)). An appellate court

must indulge in a "strong presumption that counsel's conduct falls within the wide range

of reasonable professional assistance" and the presumption of a legitimate trial strategy.

Strickland, 466 U.S. at 689. To rebut the presumption that counsel's performance was

reasonable, Shire "bears the burden of establishing the absence of any 'conceivable

legitimate tactic explaining counsel's performance.'" Grier, 171 Wash. 2d at 426 (quoting

State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004)); State v. Humphries,

181 Wash. 2d 708, 720, 336 P.3d 1121 (2014); McFarland, 127 Wash. 2d at 335-36.

       Shire cannot show the decision not to request a material witness warrant before

the last day of trial fell below the objective standard of reasonableness based on the

circumstances.

       The second trial began on September 3, 2014. The State filed a motion to

amend the information to add a charge of assault of Berket Kebede in the first degree

while armed with a firearm. On September 4, the State served Kebede with a subpoena

to appear and testify at trial. During pretrial motions, Shire's attorney described the

"pros and cons" of calling Kebede as a defense witness. "Certainly the concerns that I

had were there were a number of jail calls, as the State has pointed out, between my



       6   Emphasis in original.


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No. 72734-6-1/9


client and Mr. Kebede." The attorney told the court there were allegations of witness

tampering.

       [There have been allegations of — of witness tampering. 1 know there's a
       letter in evidence that the prior trial court permitted, that I anticipate will be
       permitted to be used at this trial, regarding that alleged witness tampering.

The defense "also knew, and understood at the time, that it was likely that Mr. Kebede

would be added as a third victim to the shooting. So it would expose my client to

additional criminal liability."

       Mardillo Barnes testified on September 9. During cross-examination, Barnes

admitted he previously testified that he did not "see who did the shooting." Barnes

testified he knew Shire and did not remember seeing or talking to Shire that evening.

       On September 11, the prosecutor told the court that because "we're not able to

locate [Kebede]," the State did not intend "at this point to introduce any of the jail calls"

that Shire "made to Mr. Kebede."

       [W]e're not able to locate him, so it doesn't — we don't anticipate him
       being called as a witness — calling him as a witness. They — some of
       these calls could potentially be used as impeachment evidence against
       him.

       The State planned to conclude its case on September 16. When the trial

reconvened on September 16, Detective Thomas Janes testified about the attempts he

made during the trial to locate Kebede including speaking to his mother. Detective

Janes said Kebede's mother had talked to Kebede "earlier in the week" but she did not

provide "any information of his location.". Detective Janes also read a letter Shire wrote

while in jail. The letter states the case against him turns on the testimony of the victims




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No. 72734-6-1/10

and if "the victims don't come," he will be convicted of only unlawful possession of a

firearm.7

       During the recess, the court asked the defense for an update—"where we'll go

next." Shire's attorney asked the court to "give the defense until tomorrow morning" to

locate Kebede. The attorney told the court that he and the investigator had made

"efforts to find him." The attorney said he left Kebede "a message saying that if — if he

was going to testify on behalf of the defense . . . that we would need him here tomorrow

morning." The prosecutor said in that event, the State planned to call Kebede as a

witness. The court ruled the State could "either rest and let the defense call [Kebede],

or you can call him and see where that takes us."

       Shire's attorney also told the court that he planned to call the defense

investigator to rebut the implication that Shire had paid Kebede to leave town and not

testify. The court ruled:

       Well he can certainly testify to having contact with Mr. Kebede in
       December of 2013. He'd not relocated to California where he was
       receiving a thousand dollars a month or anything like that. He was here in
       King County, Washington in December of 2013.

       The court asked the defense attorney what were "the chances of [Kebede]

coming in tomorrow morning." Shire's attorney responded that "from my perspective,




       7 The letter states, in pertinent part:
       What's up, Samira?        [M]y case is looking kind of bad right now that they pushed it
       back 'til October. And they got my prints on the gun. But really, my case relies on the
       victims. If the victims don't come, I will get charged with the gun. That's why I'm
       stressing really. So far they can't get a hold of none of the victims or the witness.
                 But yeah, I need you.. . to take Oh Boy out of town to Cali and give him like one
       thousand a month to live until my shit is over with 'cause if they find him and he comes,
       I'm cooked. Bad. That's why I need you to do that, because with him I . . should be
       good. 'Cause they are — are looking for him.


                                                   10
No. 72734-6-1/11


. . . they're slim."

        I've left messages, [the defense investigator] went out and talked to his
        mom that — basically what we conveyed to him was the case will be over
        tomorrow. I — I have no idea if he's going to show up.

        Ibrahim's attorney then disclosed that she received a call from Kebede that day

and he said he "would be here at 8:30" tomorrow morning.

                [IBRAHIM'S ATTORNEY]: And your Honor, this is perhaps why I
        need to then disclose this. And that is just at the lunch hour, I did get a
        call from Mr. Kebede —
                THE COURT: Okay.
                [IBRAHIM'S ATTORNEY]: — in response to my telephone calls.
                THE COURT: Uh huh.
                [IBRAHIM'S ATTORNEY]: Mr. Kebede — I told him he would need
        to be here at 8:30 tomorrow morning.
                THE COURT: Yeah.
                [IBRAHIM'S ATTORNEY]: He indicated he would be here at 8:30.

        The next morning on September 17, Shire's attorney told the court that Kebede

called at approximately 7:45 a.m. Kebede acknowledged receiving the subpoena from

the defense and said he "would be here at 9:00" a.m. The court ruled Shire could

present the testimony of the defense investigator.

        Well we can bring in the jury, the State can rest. We can hear from [the
        defense investigator], and that will give us until 9:30 or 9:40 to see if Mr.
        Kebede should appear. If he has not appeared, then would you be
        resting?

Shire's attorney told the court that if Kebede did not appear by 9:40 a.m., he would ask

the court to issue a material witness warrant.

                [SHIRE'S ATTORNEY]: I — I think the only other thing that I would
        have would be a motion for material witness warrant. Unfortunately the
        service information is, as I've described to the Court, and — and that's all
        that I can offer the Court in terms of a basis for that.
                THE COURT: Okay.
                [SHIRE'S ATTORNEY]: But — but I — I think I would be obliged to
        ask.




                                              11
No. 72734-6-1/12


                  THE COURT: Okay. And I think I would probably, in light of the
           timing, be obliged to decline that —
                  [SHIRE'S ATTORNEY]: That's not a surprise.
                  THE COURT: — invitation. You know, I might have a week ago,
           which is, I think, what Detective Janes might have had the impression had
           occurred. There was not a warrant for Mr. Kebede?

The prosecutor told the court that "there actually is a warrant for Mr. Kebede's arrest" in

municipal court.

           The court denied Shire's request to issue a material witness warrant. The State

rested. The defense called their investigator to testify. Kebede did not come to court to

testify.

           Shire cannot show deficient performance in failing to request a material witness

warrant sooner. There is no dispute that Kebede received a subpoena to testify and

that until Kebede did not appear on September 17, there was no justification to request

a material witness warrant. See CrR 4.10.8 Kebede told the defense the day before

that he would come to court the next morning. The next morning, Kebede talked to

Shire's attorney and confirmed he planned to come to court and testify.

           The record also shows legitimate strategic reasons to not delay the trial to locate

Kebede. Barnes testified he knew Shire, and Shire was not involved in the shooting.

There is no dispute the State would have impeached Kebede's credibility by introducing

evidence including that Kebede was in regular contact with Shire while he was in jail,

that Kebede was in court during the first trial, and that he did not come forward until



           8 CrR 4.10(a) states, in pertinent part:

           The [material witness] warrant shall issue only on a showing. . . that
                   (1) The witness has refused to submit to a deposition ordered by the court
           pursuant to rule 4.6; or
                   (2) The witness has refused to obey a lawfully issued subpoena; or
                   (3) It may become impracticable to secure the presence of the witness by
           subpoena.


                                                      12
No. 72734-6-1/13


after Williams testified. Further, without Kebede's testimony, the State would not

introduce the jails calls between Kebede and Shire or question Kebede about the letter

Shire wrote.

        Because Shire cannot establish deficient performance, his claim of ineffective

assistance of counsel fails. Strickland, 466 U.S. at 697; Hendrickson, 129 Wash. 2d at 78;

Carson, 184 Wash. 2d at 229.

Statement of Additional Grounds

        In his pro se statement of additional grounds, Shire claims his attorney provided

ineffective assistance of counsel by not asking Williams about being "pressured into

testifying against me" and about the information Williams obtained after the shooting

"from friends and family." Shire cannot show ineffective assistance of counsel. Shire's

attorney engaged in a lengthy cross-examination of Williams, and we presume

decisions regarding the extent of cross-examination are strategic. See In re Pers.

Restraint of Brown, 143 Wash. 2d 431, 451, 21 P.3d 687 (2001); State v. Stockman, 70
Wash. 2d 941, 945, 425 P.2d 898 (1967).9

Scrivener's Error in Judgment and Sentence

        Shire contends the judgment and sentence incorrectly lists assault in the first

degree instead of assault in the second degree. The State concedes the judgment and

sentence mistakenly lists assault in the first degree. We accept the State's concession




          9 Shire also contends that because Kebede did not testify, he was deprived of his constitutional
right to confront Kebede and present a defense. Because appellate counsel "addressed" this argument,
we need not address Shire's argument. RAP 10.10(a); State v. Thompson, 169 Wash. App. 436, 493, 290
P.3d 996 (2012) (alleged error thoroughly addressed by counsel not proper matter for statement of
additional grounds).


                                                    13
No. 72734-6-1/14


as well taken and remand to correct the judgment and sentence. In re Pers. Restraint

Petition of Mayer, 128 Wash. App. 694, 701-02, 117 P.3d 353 (2005).

      We affirm the jury conviction but remand to correct the scrivener's error in the

judgment and sentence.




                                                  0C)J2-4eQQJQ,,:a--
WE CONCUR:




                                           14