State Of Washington, Respondent V. Wayne Hyman Alpert, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
ALPERT, WAYNE HYMAN,
DOB: 07/03/1957,
Appellant.
No. 82960-2-I
UNPUBLISHED OPINION
BOWMAN, J. — In Wayne Alpert’s first appeal, we reversed his second
degree murder conviction and remanded for retrial, subject to the suppression of
evidence obtained in violation of Alpert’s right to counsel under CrR 3.1. State v.
Alpert, No. 79147-8-I (Wash. Ct. App. Dec. 21, 2020) (unpublished),
https://www.courts.wa.gov/opinions/pdf/791478.pdf. We concluded that “Alpert
unequivocally invoked his right to counsel,” that a violation of his CrR 3.1 right to
counsel occurred, and that the trial court improperly admitted evidence tainted by
that violation, specifically including statements Alpert made at the hospital.
Alpert, No. 79147-8-I, slip op. at 13-16. Nevertheless, the trial court on remand
held a second suppression hearing, considered additional evidence about
whether a CrR 3.1 violation occurred, and determined that Alpert’s statements at
the scene of the crime, in a patrol vehicle, at the Marysville Municipal Jail, and at
the hospital were admissible on retrial. Because the trial court’s procedure and
decision failed to adhere to the scope of our remand, we granted discretionary

No. 82960-2-I/2
2
review of the trial court’s interlocutory ruling. State v. Alpert, No. 82960-2-I
(Wash. Ct. App. Apr. 25, 2022) (unpublished), https://www.courts.wa.gov/
opinions/pdf/829602.pdf.
The State now concedes that the trial court’s ruling on remand failed to
comply with our mandate. We accept the concession. Alpert’s tainted
statements made after he invoked his right to counsel on June 11, 2017 must be
suppressed.1 In accordance with our previous ruling, we again remand for retrial
on the charge of murder in the second degree while armed with a firearm.2
WE CONCUR:
1 Our prior ruling did not address or affect the admissibility of statements Alpert
made after he was confined at the Snohomish County Jail and represented by counsel.
2 Nothing in our prior decisions prohibits the trial court from conducting an
evidentiary hearing that complies with our mandate if necessary to “identify” the
statements tainted by the violation of CrR 3.1. See Alpert, No. 79147-8-I, slip. op. at 16.