State Of Washington, Respondent V. Phonsavanh Phongmanivan, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, 	) 	NO. 66858-7-1
)
Respondent, 	) 	DIVISION ONE
)
v. 	)
) 	UNPUBLISHED OPINION
PHONSAVANH PHONGMANIVAN, 	)
)
Appellant. 	) 	FILED: 	June 24,2013
)
CD
Leach, C.J. — Phonsavanh (Sam) Phongmanivan appeals his conviction
for first degree assault. 	He argues that the trial court violated his due process
rights by permitting a severely disabled victim to testify without first requiring a
full forensic neuropsychological examination to assess her competency to testify.
He 	also 	claims 	that the 	court 	improperly 	denied 	his 	motion 	to 	dismiss 	for
prosecutorial misconduct. 	Because the court did 	not abuse its discretion on
either ruling, we affirm.
FACTS
On October 31, 2008, Margilynn 	Umali and her boyfriend, 	Phonsavanh
Phongmanivan, 	celebrated 	Halloween 	with 	several 	friends 	in 	the 	Belltown
neighborhood of Seattle. 	As they walked through 	Belltown, two men started
flirting with Umali, and a fight broke out. 	Someone fired a gun, shooting Umali in

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the head. 	Phongmanivan and another man carried Umali to the car and took her
to the hospital. 	Umali survived the shooting, but a bullet remained lodged in her
brain, causing her to suffer from severe aphasia.1 	Another victim, Roger Wright,
suffered gunshot wounds to his leg and buttocks.
The 	State 	charged 	Phongmanivan 	with 	the 	shootings. 	As 	Umali
recovered and began to regain her ability to speak, the State decided to call her
as a witness at trial. 	Phongmanivan questioned her ability to testify and submit
to meaningful cross-examination. 	The court held a competency hearing, at which
Umali testified, using a combination of oral and written responses, drawings, and
gestures to respond to questions. 	When asked about what happened the night
of the shooting, she drew a picture of Phongmanivan holding the gun. 	At the end
of the 	hearing, 	the 	court 	remarked, 	"[C]ertainly this 	is the 	most 	profoundly
disabled adult I've ever seen on the stand where testimony is being offered from
that witness," but he ultimately found Umali competent to testify.
Before trial, Phongmanivan renewed his objection to Umali's testimony
and 	moved 	to 	compel 	a 	forensic 	psychological 	exam 	to 	determine 	her
competency and 	if the memories she professed were 	real or manufactured.
1 "Aphasia" is defined as *"[a]ny of a large group of speech disorders
involving defect or loss of the power of expression by speech, writing or signs, or
of comprehending spoken or written language, due to injury or disease of the
brain or to psychogenic causes.'" 	Payne v. Astrue, No. 4:11-CV-01113, 2012 WL
5389705, at *5 n.16 (M.D. Pa. 	Nov. 2, 2012) (alteration in original) (quoting
Dorland's Illustrated Medical Dictionary 114 (32d ed. 2012)).
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Phongmanivan's 	expert 	questioned 	whether 	Umali 	understood 	the 	events
surrounding 	the 	assault 	and 	the 	trial 	proceedings, 	but 	he 	admitted 	that 	no
available test could determine whether her memories were real or not. 	The court
denied the motion, and the case proceeded to trial.
At trial, both victims, Umali and Wright, testified that Phongmanivan was
the shooter. 	A third witness, who videotaped the entire scene, could not identify
Phongmanivan as the shooter but stated that one of the men who carried Umali
to the car was the shooter. 	The defense stipulated that Phongmanivan and
another person carried Umali to the car and that the other person who carried her
to the car was not a suspect. 	Several other witnesses testified that the shooter
was 	an 	Asian 	male 	with 	short 	hair 	wearing 	a 	Seattle 	Seahawks 	jersey.
Phongmanivan indicated that Gabriel McBride fit that description.
McBride and his girl friend, Janelle Dalit, were at the scene of the shooting
and 	were 	friends 	with 	Roger Wright. 	Although 	Detective 	Eugene 	Ramirez
conducted a full interview with Dalit a few days after the shooting, he was unable
to locate or speak with McBride. 	By the time of trial, Detective Ramirez could no
longer locate Dalit because she moved and changed phone numbers. 	Originally,
the prosecutor did not expect to call Dalit and McBride as witnesses.
The day before trial, the prosecutor had contact with Dalit for the first time.
She stated that she did not respond to the prosecution's repeated attempts to
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locate her because she did not want to be involved in the case. 	The prosecutor
informed 	Dalit of the 	defense's 	planned 	case strategy to 	convince 	her and
McBride to testify.
On December 7, 2010, Phongmanivan interviewed Dalit and learned that
the prosecutor had 	met with 	Dalit and 	McBride 	and 	informed them that the
defense intended to 	blame McBride for the crime. 	Phongmanivan moved to
dismiss 	based 	on 	the 	prosecutor's 	violation 	of 	a 	witness 	exclusion 	order.
Although the trial court found the prosecutor's conduct inappropriate, it denied
the motion. 	Instead, the court allowed Phongmanivan to cross-examine Dalit and
McBride on anything that the prosecutor told them.
Dalit testified that she was with McBride at the time of the shooting, but
she 	could 	not 	identify 	the 	shooter. 	She 	also 	testified 	that 	nothing 	in 	her
statement to Detective Ramirez a few days after the shooting was any different
from 	her trial 	testimony 	or 	defense 	interview. 	On 	cross-examination, 	Dalit
admitted that she only learned Phongmanivan identified McBride as the shooter
when the prosecutor told her.
On 	December 	8, 	2010, 	the 	defense 	interviewed 	McBride. 	McBride
reported that he first learned about the State's efforts to locate him when Dalit
told 	him about testifying and discussed 	her memory of the events with him.
Phongmanivan renewed his motion to dismiss under CrR 8.3(b) for governmental
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misconduct. 	The court denied the motion, finding insufficient evidence to support
dismissal of the case for prosecutorial misconduct. 	The court noted that due to
possible 	Fifth 	Amendment 	concerns, 	the 	prosecutor 	was 	entitled 	to, 	if 	not
ethically required to, inform McBride of Phongmanivan's allegation that McBride
was the perpetrator. 	The court also ruled that Phongmanivan had not shown any
prejudice.
The jury convicted Phongmanivan of two counts of first degree assault
with firearm enhancements. 	The court imposed a standard range sentence of
306 months in prison. 	Phongmanivan appeals.
STANDARD OF REVIEW
This court reviews a trial court's decision about a witness's competence to
testify for an abuse of discretion.2 	It also reviews a trial court's CrR 8.3(b)
decision for an abuse of discretion. 	A trial court abuses its discretion when its
decision is manifestly unreasonable or is based on untenable grounds.3 	"A trial
court's decision is manifestly unreasonable if it 'adopts a view that no reasonable
person would take.'"4 	A trial court bases its decision on untenable grounds or
2 State v. Stanqe, 53 Wn. App. 638, 642, 769 P.2d 873 (1989).
3 In re Pet, of Duncan. 167 Wn.2d 398, 402, 219 P.3d 666 (2009).
4 Duncan, 	167 	Wn.2d 	at 	402-03 	(internal 	quotation 	marks 	omitted)
(quoting Maver v. Sto Indus.. Inc.. 156 Wn.2d 677, 684, 132 P.3d 115 (2006)).
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untenable reasons if it applies the wrong legal standard or relies on unsupported
facts.5
ANALYSIS
Phongmanivan 	alleges 	that 	the 	trial 	court 	erred 	by 	finding 	Umali
competent to testify and by denying his motion to conduct a forensic evaluation
to determine her exact cognitive abilities. 	A court will hold a witness competent if
the witness understands the nature of the oath and is capable of giving a correct
account ofwhat he or she has seen and heard.6 Washington courts presume the
competency of every witness to testify.7 	Any witness not able to receive just
impressions of the facts or to relate them truly is not competent to testify.8 	This
prohibition applies "only to those with no comprehension at all, not to those with
merely limited 	comprehension"9 and to those with 	an "inability to distinguish
between right and wrong."10 	The party challenging the competency of a witness
has the burden of rebutting the presumption.11
5 Duncan, 167 Wn.2d at 403.
6State v.Allen, 67 Wn.2d 238, 241, 406 P.2d 950 (1965).
7 State v. 	S.J.W.. 	170 Wn.2d 	92, 100, 	239 P.3d 	568 (2010); 	RCW
5.60.020 ("Every person of sound mind and discretion . . . may be a witness in
any action, or proceeding."); CrR 6.12(a) ("Any person may be a witness in any
action or proceeding under these rules except as hereinafter provided or as
provided in the Rules of Evidence.").
8 RCW 5.60.050.
9State v. Watkins, 71 Wn. App. 164, 169, 857 P.2d 300 (1993).
10 State v. Smith. 97 Wn.2d 801, 803, 650 P.2d 201 (1982).
11 S.J.W.. 170Wn.2dat102.
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NO. 66858-7-1 / 7
Specifically, Phongmanivan questions Umali's ability to accurately recall
events 	and 	report 	information 	about the 	night 	of 	the 	shooting. 	The 	court
addressed these issues at a competency hearing on 	March 10, 2010. 	Umali
testified using a combination of verbal and written responses and by drawing
pictures in response to some questions. 	Despite her difficulty communicating,
the court ultimately found that Umali understood the difference between right and
wrong and that she appeared to have some memory of the shooting. 	The court
held her competent to testify at trial.
Before trial, 	Phongmanivan renewed his motion and asked the court to
order a full forensic psychological evaluation of Umali 	before allowing her to
testify. 	He acknowledged that the primary purpose of the exam was to determine
if Umali's memories of the shooting were real or whether they had been "fed" to
her 	by 	her 	family 	and 	other 	people 	involved 	in 	the 	case. 	However,
Phongmanivan's psychology expert conceded that no psychological test could
provide the answer to this question.
Phongmanivan 	argues 	that 	State 	v. 	Mines12 	permits 	the 	court, 	in
compelling circumstances, to order a witness to undergo a forensic examination.
He acknowledges that Mines actually held that the trial court did not abuse its
12 35 Wn. App. 932, 935-36, 671 P.2d 273 (1983).
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NO. 66858-7-1 / 8
discretion when it refused to appoint an expert witness but asserts that the case
recognizes one should be appointed in appropriate circumstances.
The State agrees the trial court had discretion to require a psychological
examination upon a showing of a compelling reason but contends Phongmanivan
failed to make the required showing. 	The State also contends Phongmanivan did
not establish that Umali lacked the ability to tell right from wrong or some ability
to observe and 	recall the events in issue. 	It also notes that Phongmanivan
conceded the unavailability of any test to measure his true concern—that Umali's
memory was not real and was created by others. 	Finally, the State points to the
cross-examination of Umali and the medical experts to show that Phongmanivan
had 	sufficient 	opportunity to 	demonstrate 	to 	the 	jury 	his 	challenges 	to 	her
testimony.
The trial 	court had the 	opportunity to 	evaluate 	Umali's testimony and
demeanor. 	The court found that "she's making her best attempt to testify from
memory and she has some memories, or at least she states that she has some
memories." The court also noted that how those memories
[a]re put into evidence is difficult and how the cross examination will
proceed is also difficult. 	But that is not the legal issue before the
court.
. . . The only 	issue for me today is whether there's some
memory she has that she can recount.
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Phongmanivan 	presented 	only 	assertions 	and 	not 	evidence 	that 	Umali
completely lacked the ability to comprehend events. 	The evidence demonstrated
only that her comprehension was incomplete. 	On these facts, we cannot say that
the trial court abused its discretion by finding Umali competent to testify and by
refusing to order a full forensic examination.
Further, the defense received more than ten volumes of Umali's medical
records through discovery. 	At trial, 	Phongmanivan was able to cross-examine
Umali and 	clearly demonstrate to the jury 	how she had difficulty processing
information. 	He also cross-examined Umali's doctors at length, including her
speech 	pathologist 	and 	several 	rehabilitation 	specialists. 	Given 	all 	the
information presented about Umali's condition during the trial, the jury was in the
best position to gauge her reliability as a witness and, as with any witness, give
her testimony the weight it deserved.
The trial court did not abuse its discretion by finding Umali competent to
testify 	without 	requiring 	forensic 	testing, 	and 	her 	testimony 	did 	not 	deny
Phongmanivan a fair trial.
Phongmanivan 	next 	contends that the trial court erred 	by denying 	his
motion to dismiss for governmental misconduct under CrR 8.3(b).13 	He argues
13 CrR 8.3(b) states, "The court, in the furtherance of justice, after notice
and 	hearing, 	may dismiss any criminal prosecution due to arbitrary action or
governmental misconduct when 	there has been prejudice to the 	rights of the
accused which materially affect the accused's right to a fair trial."
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that the prosecutor violated the witness sequestration order by speaking with two
witnesses about the defense's trial strategy to induce them to testify and that this
violation denied him a fair trial.
Dismissal under CrR 8.3 is "an extraordinary remedy, one to which a trial
court should turn only as a last resort."14 	To support dismissal under CrR 8.3(b),
the defendant must show by a 	preponderance of evidence both 	(1) arbitrary
action or misconduct and (2) actual prejudice affecting the defendant's right to a
fair trial.15 While claimed governmental misconduct need not be evil or dishonest
in nature,16 dismissal will be granted only where there is actual prejudice to the
rights of the accused.17 Thus, the State's failure to sequester witnesses does not
require a 	new trial 	unless the court's decision to 	allow the allegedly tainted
testimony 	resulted 	in 	actual 	prejudice.18 	For alleged 	misconduct to create
prejudice, the acts must materially affect the defendant's right to a fair trial.19 The
mere possibility of prejudice is insufficient.20
14 State v.Wilson. 149Wn.2d1, 12, 65 P.3d 657 (2003).
15 State v.Wilson, 108 Wn. App. 774, 777, 31 P.3d 43 (2001).
16 State v.Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997).
17 State v.Moen. 150 Wn.2d 221, 226, 76 P.3d 721 (2003).
18 State v. Adams. 76 Wn.2d 650, 659, 458 P.2d 558 (1969), reversed on
other grounds bv Adams v. Washington. 403 U.S. 947, 91 S. Ct. 2273, 29 L Ed.
2d 855 (1971).
19 State v. Pena Fuentes. 172 Wn. App. 755, 761, 295 P.3d 252 (2013),
petition for review filed. No. 88422-6 (Wash. Feb. 12, 2013).
20 State v. Krenik. 156 Wn. App. 314, 320, 231 P.3d 252 (2010).
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Assuming, without finding, that the prosecutor's actions were improper, we
find no prejudice. 	Phongmanivan contends that we should presume prejudice
based on the prosecutor's knowing violation of the witness sequestration order.
Phongmanivan 	asks this court to 	shift the burden to the State to 	prove the
absence of prejudice. 	He cites United States v. Ell.21 a Ninth Circuit Court of
Appeals case holding that when a prosecutor violates a witness sequestration
order, the court presumes prejudice, requiring reversal unless the prosecution
proves harmless error by a preponderance of the evidence. 	His reliance on Ell,
however, is misplaced. 	EH addressed the court's refusal to exclude witnesses
pursuant to the Federal Rules of Evidence. 	Under Fed. 	R. Evid. 615, "[a]t a
party's request, the court must order witnesses excluded so that they cannot
hear other witnesses' 	testimony." 	In contrast, 	Washington 	trial 	courts 	have
discretion whetherto sequester witnesses.22
Allowing 	Dalit 	and 	McBride 	to 	testify 	did 	not 	affect 	the 	fairness 	of
Phongmanivan's trial. 	When the prosecutor contacted Dalit, no witnesses had
testified, and the defense had not presented its opening statement. 	While the
prosecutor's 	contact with 	McBride 	occurred 	after testimony 	had 	begun, 	the
prosecutor limited her statements to the nature of the case and did not discuss
the 	other 	witnesses' 	testimony. 	Further, 	Dalit testified 	consistently 	with 	a
21 718 F.2d 291, 293-94 (9th Cir. 1983).
22 ER 615; Adams. 76 Wn.2d at 659.
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NO. 66858-7-1/12
statement 	she 	gave 	the 	police 	shortly 	after the 	shooting 	and 	her 	defense
interview. 	She did not identify the shooter, and Phongmanivan defended 	based
on mistaken identity. 	Phongmanivan has not shown that the prosecutor's actions
affected any testimony presented to the jury.
Phongmanivan 	argues 	in the 	alternative 	that 	the 	trial 	court erred 	by
allowing 	Dalit and 	McBride to 	testify. 	He 	argues that the weight of Dalit's
testimony was considerably affected by the fact that the prosecutor informed her
of 	the 	defense 	theory 	and 	that 	Dalit was 	called 	especially 	to 	corroborate
McBride's alibi.
The remedy for violating a witness exclusionary order is at the trial judge's
discretion.23 	Washington recognizes three possible sanctions when a 	party
violates such an 	order: 	"(1) hold 	the witness 	in contempt, 	(2) allow cross-
examination regarding the violation and/or comments about the witness's actions
during closing argument, or (3) preclude the witness from testifying."24 	Several
decisions have upheld a trial court's decision to allow witnesses to testify despite
violating an exclusionary order.25 	The trial court provided an appropriate remedy
in this case. 	The judge allowed full cross-examination of Dalit and 	McBride
23 State v. Skuza. 156 Wn. App. 886, 896, 235 P.3d 842 (2010), review
denied. 170Wn.2d 1021, 245 P.3d 775 (2011).
24 Skuza. 156 Wn. App. at 896.
25 See State v. Dixon. 37 Wn. App. 867, 877, 684 P.2d 725 (1984); State
v. Schapiro. 28 Wn. App. 860, 867-68, 626 P.2d 546 (1981); State v. Walker. 19
Wn. App. 881, 883, 578 P.2d 83 (1978).
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NO. 66858-7-1/13
regarding anything that the prosecutor told them about the case. 	The information
elicited 	through 	this 	cross-examination 	allowed 	the 	jury 	to 	question 	the
prosecutor's and the witnesses' credibility.
Lastly, 	Phongmanivan 	argues 	that 	the 	prosecutor's 	violation 	of 	the
sequestration 	order 	and 	the 	trial 	court's 	subsequent failure 	to 	exclude 	the
testimony rendered the trial so fundamentally unfair as to violate his due process
right 	under the 	Fourteenth 	Amendment.26 	Dismissal 	based 	on 	outrageous
conduct requires more than a mere demonstration of flagrant conduct.27 	The
level of governmental misconduct must shock the conscience of the court and
the universal sense of fairness.28 	The due process clause of the Washington
Constitution 	does 	not 	afford 	broader 	protection 	than 	that 	of the 	Fourteenth
Amendment.29
In 	Larson v. 	Palmateer,30 the Ninth 	Circuit Court of Appeals held that
failure to exclude a witness does not violate a defendant's due process rights.
Responding to 	the 	defendant's 	claim that the trial 	court's failure 	to 	exclude
witnesses violated his right to due process, the court stated,
26 Constitutional error may be raised for the first time on appeal. 	RAP
2.5(a)(3); State v. Johnson. 100 Wn.2d 607, 614, 674 P.2d 145 (1983), overruled
on other grounds bv State v. Bergeron. 105Wn.2d 1, 711 P.2d 1000(1985).
27 State v. Lively. 130Wn.2d 1,20,921 P.2d 1035(1996).
28 Lively. 130 Wn.2d at 19.
29 State v. McCormick. 166 Wn.2d 689, 699, 213 P.3d 32 (2009).
30 515 F.3d 1057, 1065 (9th Cir. 2008).
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NO. 66858-7-1/14
Neither this court nor the Supreme Court has ever held that the
failure to exclude witnesses can violate due process. . . . Although
the Federal Rules of Evidence now require a federal district court to
exclude witnesses upon the motion of a party, there is no indication
that this rule has a constitutional basis.[31^
Phongmanivan makes no showing that the prosecutor's contact with Dalit and
McBride adversely affected his trial. 	As the trial court concluded, the record does
not suggest that Dalit and McBride tailored their testimony to corroborate the
testimony of other witnesses. 	Rather, their testimonies were limited to the events
of the shooting, not the shooter's identity. 	Because the trial court provided an
appropriate remedy for any improper communication between the prosecutor and
these witnesses, no due process violation occurred.
CONCLUSION
Because the court did not abuse its discretion by denying Phongmanivan's
motion for a forensic evaluation of Umali or his motion to dismiss, we affirm.
^-j^ee^e^i. 	(—- •
WE CONCUR:
w 	.-—S 	SW/^/9,
31 Palmateer. 515 F.3d at 1065.
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