[Nos. 55217-1-I; 55218-0-I; 57282-2-I; 57283-1-I. Division One. June 18, 2012.]
July 8, 2011, Oral Argument
Atif Rafay, pro se.
Glen Sebastian Burns, pro se.
David B. Koch (of Nielsen, Broman & Koch PLLC), for appellant Rafay.
Jason B. Saunders (of Gordon & Saunders PLLC) and Elaine L. Winters (of Washington Appellate Project), for appellant Burns.
Daniel T. Satterberg, Prosecuting Attorney, and Deborah A. Dwyer and Brian M. McDonald, Deputies, for respondent.
James E. Lobsenz and Thomas H. Golden on behalf of The Innocence Network, amicus curiae.
Author: J. Robert Leach, C.J.
We concur: Stephen J. Dwyer, J., Mary Kay Becker, J. ¶1 LEACH, C.J. -- Glen Sebastian Burns and Atif Ahmad Rafay appeal their convictions of three counts of aggravated murder in the first degree, based upon the murders of Rafay's parents and sister. They argue that a complex undercover operation conducted by the Royal Canadian Mounted Police (RCMP) coerced their confessions admitted at trial. But substantial evidence supports the trial court's finding that these confessions were voluntary. And because the other issues presented by Burns and Rafay also do not warrant appellate relief, we affirm. Background ¶2 The following is a cursory summary of the facts developed during nearly 8 months of trial and approximately 35 court days of hearings on pretrial motions. Additional facts are set forth as necessary in the analysis of each issue. ¶3 At about 2:00 a.m. on Wednesday, July 13, 1994, Sebastian Burns called 911 to report "some sort of break-in" at the Bellevue home of Atif Rafay's parents. Burns indicated there was blood all over and that Rafay's parents appeared to be dead. Burns and Rafay, both Canadian citizens, had been staying at the home since July 7. ¶4 Bellevue police responded to the call within about five minutes and began an extensive investigation. Inside, police found Sultana Rafay, Rafay's mother, on the lower floor of the house and Tariq Rafay, Rafay's father, upstairs in his bed. Both had been bludgeoned to death. They found Basma Rafay, Rafay's sister, gasping and still alive in her room. She later died at the hospital from severe head wounds. ¶5 After Burns and Rafay provided initial statements at the scene, officers drove them to the police station, where each gave a second statement. ¶6 In their statements, Burns and Rafay explained that they had left the house at about 8 p.m. on the evening of July 12 and gone to the Keg Restaurant in Factoria for dinner. They then attended the 9:40 p.m. showing of The Lion King at the Factoria Cinema. Theater employees recalled Burns as one of the patrons who had reported a curtain malfunction shortly after the movie began. No one saw Burns or Rafay at the theater after about 10:00 p.m. ¶7 After the movie, the two drove to Steve's Broiler in downtown Seattle, where they arrived about midnight. After leaving the restaurant, Burns and Rafay tried to enter the nearby "Weathered Wall" nightclub but arrived too late. They returned to Steve's Broiler, used the restroom, and drove back to Bellevue. Upon entering the lower level of the house, Burns and Rafay discovered Sultana's body and then Tariq's body upstairs. Rafay heard his sister moaning in her room. He told police that several items appeared to be missing, including his personal stereo and portable compact disc player and a family videocassette recorder (VCR). ¶8 Bellevue police arranged for Burns and Rafay to stay in a Bellevue motel on July 13. Burns and Rafay each gave a third statement on the afternoon of July 14. On Friday, July 15, 1994, without telling the police, Burns and Rafay boarded a bus and returned to Vancouver, B.C. The two did not attend the family's funeral on Friday afternoon at a Northgate mosque. After staying for several weeks with Burns's parents, Burns and Rafay moved into a North Vancouver house with friends Jimmy Miyoshi and Robin Puga. ¶9 Bellevue police traveled to Vancouver a few days after the murders but were unsuccessful in arranging any further contact with Burns or Rafay. Eventually, Bellevue police asked the RCMP for assistance in obtaining financial information about Burns and Rafay and DNA (deoxyribonucleic acid) samples. ¶10 In January 1995, Bellevue police detectives met with RCMP officers in Vancouver, and the RCMP agreed to assist. The RCMP also opened their own investigation into whether the defendants had been involved in a conspiracy to commit murder while in Canada. The RCMP obtained judicial authority to place wiretaps and audio intercept devices in the defendants' home and in their car and eventually obtained more than 4,000 hours of recordings. ¶11 In April 1995, the RCMP began an undercover operation similar to others it used in many Canadian cases over the years. Dubbed "Project Estate," undercover officers posed as the leaders of a successful criminal organization. Sergeant Al Haslett and Corporal Gary Shinkaruk were the primary undercover operators, with Haslett acting as "Mr. Big," the apparent head of the fictitious organization, and Shinkaruk as his subordinate. The operation eventually planned and carried out the following 12 "scenarios" in an effort to secure confessions: ¶12 No. 1 April 11, 1995. For the initial meeting, Shinkaruk staged an encounter with Burns outside a hair salon after Burns had a haircut. Shinkaruk told Burns that he had locked his keys in his car and asked for a ride back to his hotel. When Burns mentioned he needed $200,000 for a movie he was planning, Shinkaruk offered to introduce him to "Al" as a possible investor. Shinkaruk accompanied Burns to a strip club and introduced him to Haslett. Burns expressed interest in Haslett's offer to earn extra money. ¶13 No. 2 April 13, 1995. Haslett contacted Burns and directed him to drive with Shinkaruk to Whistler, where the two met with Haslett. When Haslett asked Burns to drive a stolen car back to Vancouver, Burns appeared pale and expressed concern about the plan. Burns eventually drove what he believed to be a stolen car back to Vancouver, where Haslett paid him $200. Burns repeatedly expressed his dissatisfaction with the amount he had earned and his lack of participation in the planning of the operation. Burns indicated he was willing to participate in more lucrative future operations, including selling drugs and acting as a "hit man." ¶14 No. 3 April 20-21, 1995. Shinkaruk left a telephone message for Burns. Burns returned the call and indicated his willingness to meet with Shinkaruk in a few days. ¶15 No. 4 May 6, 1995. At the Four Seasons Hotel, an undercover officer, dressed as a biker, displayed two guns and delivered a large amount of cash to Shinkaruk. Burns watched and then helped Shinkaruk count the money. Shinkaruk told Burns he had "fuckin' toasted a guy," but Haslett had made sure the witness was unavailable for trial. ¶16 During the meeting, Burns disclosed that he and a friend were suspects in the Bellevue murders. Burns claimed that he now had enough money to make his movie but remained interested in certain future opportunities, including money laundering and drug sales. He also said he would not have "any dilemma" about killing someone for the organization and that "anything goes." Burns repeatedly resisted Hazlett's questions about committing the murders but also indicated his desire to learn more about what the Bellevue police knew and to have evidence destroyed. ¶17 No. 5 May 29-30, 1995. Shinkaruk became concerned that a recent newspaper article may have compromised the operation. He called Burns. Burns said he was glad to hear from Shinkaruk and was available to meet with him. Shinkaruk said he would call the next day and set up a meeting. After the call, the electronic intercept recorded Burns singing, "I'm a happy man." When Shinkaruk called the next day, he told Burns that Haslett was busy and nothing would be scheduled that day. Burns expressed disappointment. ¶18 No. 6 June 15-16, 1995. On June 13, 1995, Shinkaruk called Burns and asked if he was interested in making some money. Shinkaruk invited Burns to bring a trusted friend and meet him at the Royal Scott Hotel in Victoria. Burns asked Miyoshi to join him. The two met with Haslett and Shinkaruk in Victoria on June 15, 1995. For two days, Burns and Miyoshi assisted Shinkaruk with "money laundering" by making cash deposits totaling about $100,000 into various bank automated teller machines. Haslett provided Burns and Miyoshi with spending money and $2,000 at the end of the second day. ¶19 During the course of the encounter, Burns twice asked Haslett what he had learned about the Bellevue investigation. Haslett said he had someone investigating the matter and would inform Burns what he learned. Haslett also discussed computer skills with Burns and Miyoshi, suggesting future employment possibilities. After Haslett and Shinkaruk left, Burns told Miyoshi that "[t]his has been the coolest thing ever[;] I couldn't ask for anymore [sic]." ¶20 No. 7 June 20, 1995. After calling Burns and telling him they might visit, Haslett and Shinkaruk appeared at the defendants' house. Haslett discussed Burns's computer knowledge and system, and told Burns he would soon be hearing from a friend with information about the Bellevue police investigation. Burns warned Haslett that the house was bugged. ¶21 No. 8 June 28-29, 1995. Burns and Miyoshi returned to Victoria for a second round of money laundering. Haslett arranged to speak alone with Burns and told him that the Bellevue police had him "in a pretty big fucking way." Haslett mentioned that the police had evidence of Burns's DNA, his hair found in the shower mixed with the victims' blood, and Burns's fingerprints on a box. Haslett said he needed more details in order to help Burns. ¶22 Burns repeatedly deflected Haslett's attempts to elicit concrete details about the murders but provided some veiled responses suggesting his participation and a financial motive. Burns also expressed concern that Haslett was an undercover officer. Haslett discussed computers again with Burns but did not pay Burns or Miyoshi for their assistance. ¶23 No. 9 July 10, 1995. To avoid appearing to focus on Burns, Haslett and Shinkaruk arranged a money laundering operation involving only Miyoshi. Miyoshi did not reveal any details about the murders. ¶24 No. 10 July 18, 1995. Burns agreed to meet with Haslett and Shinkaruk at the Ocean Point Hotel in Victoria. At the hotel, Haslett discussed the organization's computer needs with Burns. Haslett then showed him a fake Bellevue Police Department memorandum that indicated the police would soon call a press conference and that charges would be filed against Burns and Rafay once the culturing of Burns's DNA was completed. Haslett told Burns that things would be happening quickly and that the police were "coming to lock your ass up." ¶25 After studying the report and discussing with Haslett the specific items of evidence that it listed, Burns insisted that the items all had potentially innocent explanations. Burns eventually acknowledged, however, that he wanted Haslett's help. Haslett told Burns that he could arrange for his associate to destroy the evidence, but that he would not do so until Burns told him the complete details of the murders. Haslett explained that the associate could not destroy all of the evidence unless he knew the details of the crime. ¶26 Burns eventually told Haslett specific details about his and Rafay's participation in the murders. A hidden camera recorded Burns's confession. ¶27 No. 11 July 19, 1995. Haslett told Burns to call Rafay and ask him to come to Victoria. While waiting for Rafay to arrive, Burns accompanied Shinkaruk to the city of Nanaimo, where Shinkaruk staged an encounter with another undercover officer. While Burns stood guard, Shinkaruk appeared to rough up the man in order to obtain more than $100,000 that he owed to Haslett. Shinkaruk and Burns then returned to Haslett's hotel room, where all three men counted the money. Burns provided additional details about the murders to Haslett. ¶28 Rafay arrived, and Haslett spoke at length with him in Burns's presence. Haslett discussed the details of the Bellevue memo with Rafay and repeatedly emphasized the importance of trust. Rafay reassured him that Burns was his best friend and that he would never betray him. Rafay then provided details about his participation in the murders. He explained that he had watched Burns kill his mother and had removed the family VCR but had not otherwise participated in the killings. When asked why they had killed his parents, Rafay responded that it was to "become richer and more prosperous and more successful." Burns also added additional details about the killing of Basma, which "took a little more bat work" than he had expected. The RCMP also videotaped Rafay's confessions. ¶29 No. 12 July 26, 1995. In the final scenario, Burns and Miyoshi met with Haslett at the Landis Hotel in Vancouver. At Burns's urging, Miyoshi told Haslett that he knew about the plan to kill Rafay's parents about a month in advance. He explained that he did not go to Bellevue with the defendants because he was too busy at work. ¶30 On July 31, 1995, Burns and Rafay were charged in King County with three counts of aggravated first degree murder. On the same day, the RCMP arrested them and charged them as fugitives. King County requested extradition of Burns and Rafay and refused to waive the potential application of the death penalty. After protracted litigation, the Canadian Supreme Court ruled on February 15, 2001, that the defendants could not be extradited without a waiver of the death penalty. King County then provided the required assurances. Burns and Rafay were transported to Washington and arraigned on April 6, 2001. ¶31 Miyoshi eventually told officers that he had known about the planned murders and discussed the plan with the defendants. When Burns and Rafay returned to Canada after the murders, they told Miyoshi certain details about the killings. Miyoshi entered into an immunity agreement and in August 2003 participated in a videotaped preservation deposition that was played at trial. ¶32 After a series of delays caused in part by the need to appoint new attorneys, testimony on the defendants' motions to suppress their confessions began on April 22, 2003, and concluded on August 6, 2003. Jury selection began on October 10, 2003, and concluded on November 13, 2003. Opening statements began on November 24, 2003, and closing statements concluded on May 20, 2004. The jury returned its verdict on May 26, 2004, finding the defendants guilty as charged. At sentencing on October 24, 2004, the court imposed three terms of life imprisonment without the possibility of parole on each defendant. Analysis Issue 1: Whether the Defendants' Confessions Were Improperly Coerced, Thereby Violating Their Rights under the Federal and State Constitutions ¶33 Defendants contend the admission of their confessions to the RCMP undercover officers violated their rights under the Fifth and Fourteenth Amendments and article I, section 9 of the Washington Constitution. Suppression Hearing ¶34 In April 2003, defendants moved to suppress evidence of their confessions, arguing that the Bellevue police assisted to such a degree in the RCMP undercover operation that the "silver platter" doctrine did not shield the admission of evidence gathered during the Canadian operation, including the electronic intercepts, from Washington law. The principles of the doctrine (although no longer explicitly called the silver platter doctrine) still are applied in federal court, such as when evidence is obtained out of the country, in violation of the Fourth Amendment, which does not govern foreign officials' conduct. See, e.g., Stonehill v. United States, 405 F.2d 738 (9th Cir. 1968) (evidence obtained in the Philippines in violation of the Fourth Amendment by foreign agents was admissible in federal court when the federal officers did not undertake or unlawfully participate in the unconstitutional search and seizure). Fowler, 157 Wn.2d at 396 n.5; see also State v. Gwinner, 59 Wn. App. 119, 126-27, 796 P.2d 728 (1990). ¶35 After a lengthy hearing, at which neither defendant testified, the trial court denied the motion to suppress. The court concluded that the relationship between the Bellevue police and the RCMP was insufficient to convert the RCMP into an agent of the Bellevue police for purposes of the silver platter doctrine. The court also rejected the defendants' challenge, based on Franks v. Delaware, The defendants do clearly enjoy the protections of the U.S. Constitution, the Fifth, Sixth, and the 14th Amendment[s], insofar as due process. Were defendants' rights under these laws violated? The court's answer is no. The statements of defendants were given, unlike Mr. Fulminante and unlike Galileo, in a noncustodial setting. The defendants were free to speak or not. The defendants were free to leave or not. The defendants were free to consult their Canadian counsel or not, as they chose. The Canadian court reviewed and found no evidence of coercion, and this court makes the same finding. The Canadian court, in reviewing the self same issue under Canadian charter rights, found no duress, found nothing under Canadian police standards that would bring the administration of justice into disrepute. ¶36 The court incorporated this portion of its ruling into finding of fact 15 and conclusion of law 6, which the defendants challenge on appeal: [Finding of fact] 15. During the course of the extradition proceedings in Canada, the Court of Appeals for British Columbia found the undercover technique used by the RCMP and the resulting interception and recording of the defendants' communications did not violate the defendants' rights under Canada's Charter of Rights and Freedoms, nor did it offend the sensibilities of the Canadian citizenry. The Court of Appeals for British Columbia further found that there was no duress or coercion employed by the RCMP during the undercover scenarios in order to obtain the defendants' admissions. The Supreme Court of Canada did not disturb this finding. This Court agrees with the Canadian courts and finds the same. . . . . [Conclusion of law] 6. The defendants' statements and admissions to undercover RCMP officers during the course of the undercover scenarios were not the product of coercion or duress and their admission into evidence will not violate the defendants' due process rights, right to counsel or right against self incrimination guaranteed by the State and Federal Constitutions. The statements at issue were made in a non-custodial setting. The defendants were free to leave or not leave. The defendants were free to speak or not speak. The defendants were free to consult their Canadian counsel or not as they chose. On appeal, defendants limit their challenge to the trial court's determination that their confessions were voluntary under the Fifth and Fourteenth Amendments. Standard of Review [1-3] ¶37 In State v. Broadaway, We hold that the rule to be applied in confession cases is that findings of fact entered following a CrR 3.5 hearing will be verities on appeal if unchallenged; and, if challenged, they are verities if supported by substantial evidence in the record. Consequently, when reviewing a trial court's conclusion of voluntariness, an appellate court determines "whether there is substantial evidence in the record from which the trial court could have found that the confession was voluntary by a preponderance of the evidence." [4, 5] ¶38 The voluntariness of a confession necessarily depends on the totality of the circumstances in each case, including whether it was "coerced by any express or implied promise or by the exertion of any improper influence." ¶39 Defendants contend that Project Estate employed coercive techniques on an unprecedented scale against young and naïve suspects. Initially, the undercover operation sought to entice defendants by projecting an attractive lifestyle for participants in a criminal organization. When the operation's initial scenarios did not persuade Burns to confess, the officers arranged a series of "money laundering" tasks, for which Burns received several thousand dollars for negligible work. Haslett also implied the defendants could provide future computer consulting services for the organization once their legal troubles were eliminated. ¶40 Defendants rely primarily on evidence that Haslett and Shinkaruk created the image of a criminal organization that was willing to use guns and violence if necessary to protect its interests. During the scenario on May 6, 1995, Shinkaruk informed Burns that he had killed someone in the past, and Haslett suggested he had had a witness "eliminated." On July 19, 1995, the day after Burns's videotaped confession, Burns accompanied Shinkaruk to a staged incident and stood guard while Shinkaruk purportedly punched someone in order to collect money. Haslett repeatedly stressed that he valued loyalty above all else and expressed concern that defendants might betray the organization if they ever went to jail. Defendants argue that the officers' comments and actions impliedly threatened violence or death if the police arrested the defendants, who would then pose some risk of revealing the organization's secrets to the police. ¶41 Defendants maintain that in order to create a sense of urgency and finally persuade them to abandon their steadfast refusal to provide details about the murders, Haslett confronted Burns with a fake Bellevue Police Department memorandum and repeatedly admonished him that arrest was imminent unless defendants agreed to Haslett's plan to destroy evidence. That plan not only promised defendants an unhindered opportunity for future participation in the organization, it also eliminated the possibility that they would spend time in jail, where they posed a threat of disclosing information about Haslett and Shinkaruk to the police. Defendants provided details about the murders only after Haslett's offer to eliminate future criminal liability. ¶42 Defendants argue that these circumstances, considered together, were so coercive they prevented the defendants from making a rational decision. Defendants claim they confessed only as a direct result of this final threat in order to avoid arrest, prosecution, and possible death. ¶43 Neither side has identified any case involving facts remotely approaching the scope of the Project Estate undercover operation. As they did in the trial court, defendants rely primarily on Arizona v. Fulminante. ¶44 In Fulminante, Arizona police suspected that the defendant had killed his young stepdaughter but had insufficient evidence to support charges. Fulminante later went to New Jersey, where he was convicted of an unrelated federal crime and incarcerated in New York. In prison, Fulminante became acquainted with Sarivola, a former police officer serving a sentence for extortion. Sarivola was a paid FBI (Federal Bureau of Investigation) informant, who masqueraded in prison as an organized crime figure. After hearing a rumor that Arizona authorities suspected Fulminante of a child murder, Sarivola raised the subject of the murder with Fulminante several times. Fulminante repeatedly denied any involvement. Sarivola passed information about his conversations to the FBI, which asked him to find out more. ¶45 Sarivola told Fulminante he knew that Fulminante was "'starting to get some tough treatment and what not'" from other inmates because of the rumor and offered to protect him. ¶46 The Arizona Supreme Court reversed Fulminante's conviction. Noting that Fulminante, an alleged child murderer, faced the danger of physical harm from other inmates and that Sarivola was aware of Fulminante's "'"rough treatment from the guys,"'" the Arizona court determined that Fulminante tendered his confession as a direct result of Sarivola's "'"extremely coercive"'" promise of assistance and in the belief that his life was in jeopardy if he did not confess. ¶47 The United States Supreme Court affirmed the Arizona court's analysis: Although the question is a close one, we agree with the Arizona Supreme Court's conclusion that Fulminante's confession was coerced. The Arizona Supreme Court found a credible threat of physical violence unless Fulminante confessed. Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. As we have said, "coercion can be mental as well as physical, and . . . the blood of the accused is not the only hallmark of an unconstitutional inquisition." As in Payne [v. Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed. 2d 975 (1958)], where the Court found that a confession was coerced because the interrogating police officer had promised that if the accused confessed, the officer would protect the accused from an angry mob outside the jailhouse door, so too here, the Arizona Supreme Court found that it was fear of physical violence, absent protection from his friend (and Government agent) Sarivola, which motivated Fulminante to confess. Accepting the Arizona court's finding, permissible on this record, that there was a credible threat of physical violence, we agree with its conclusion that Fulminante's will was overborne in such a way as to render his confession the product of coercion. ¶48 The Court also identified additional facts in the record, not relied upon by the Arizona court, that supported a finding of coercion: Fulminante possesses low average to average intelligence; he dropped out of school in the fourth grade. He is short in stature and slight in build. Although he had been in prison before, he had not always adapted well to the stress of prison life. While incarcerated at the age of 26, he had "felt threatened by the [prison] population," and he therefore requested that he be placed in protective custody. Once there, however, he was unable to cope with the isolation and was admitted to a psychiatric hospital. The Court has previously recognized that factors such as these are relevant in determining whether a defendant's will has been overborne. ¶49 Defendants also rely on United States v. McCullah, [6] ¶50 The circumstances in both Fulminante and McCullah differ fundamentally from those in this case. In both decisions, the defendants confessed in response to what the courts stressed were credible threats of physical harm. Although Haslett and Shinkaruk portrayed their criminal organization as one that had used violence on occasion to achieve its goals or protect its members, the record does not indicate that they ever threatened the defendants with physical harm or placed them in a position suggesting they were subject to imminent physical harm. ¶51 Moreover, the interaction between the defendants and the undercover officers in this case encompassed a period of several months. As the trial court stressed, the defendants were free to break off their contact with the undercover officers at any time. On one occasion, weeks passed with no contact between the participants. Throughout the undercover operation, defendants pursued their normal and chosen activities with no interference from the undercover officers. ¶52 During Project Estate, the defendants repeatedly pursued their contacts with Haslett and Shinkaruk; expressed their willingness to participate in the organization's criminal activities, including acts of violence; and requested Haslett's assistance in avoiding future prosecution. Defendants do not identify any evidence in the record suggesting that their age, mental abilities, education, emotional condition, or specific personality traits left them unusually vulnerable to coercive measures. Nor does the record establish that the defendants were financially dependent on the money they received from Haslett. ¶53 Throughout the entire undercover operation, Burns, who essentially managed the relationship with Haslett and Shinkaruk on behalf of the defendants, exhibited a remarkable resilience to continued pressure. In the earlier scenarios, Burns was not intimidated and resisted Haslett's repeated attempts to extract information about the murders. Although Burns appeared scared or nervous during the stolen car scenario, he did not hesitate to complain afterward about the amount of money he had earned and his unhappiness about not participating in the planning of the operation. Burns clearly attempted to leverage the incident to a more lucrative relationship with the organization. Even when confronted with the fake police memo, Burns firmly and accurately responded that the purported evidence was equivocal and was either easily explained or simply unrelated to the defendants' actions during the murders. ¶54 Although defendants claim they confessed out of fear of physical injury, Burns expressly raised the subject with Haslett on several occasions, casually asserting his expectation that someone in the organization would shoot him if he ever betrayed it. But Haslett repeatedly suggested to Burns that if things did not work out, the parties would just walk away from one another. During the second money laundering scenario in Victoria, Haslett commented that Burns only had Shinkaruk's pager number and informed him that if mistakes were made, the "pager will be fuckin' thrown in the fuckin' ocean and that'll be the end of it." Near the end of the confession recording, Burns assures Haslett that he can trust him because otherwise "some guy [would come and] blast me in the head." In response, Haslett insists that he is "not a killer" and that because he and Burns have not done anything together at this point, either one is free to walk away if there is a lack of trust. Haslett also repeatedly asserts that Burns is free to talk to his attorney. Burns's actions throughout suggest deliberate attempts to impress Haslett, not fear of physical injury. ¶55 Significantly, unlike any of the authorities cited on appeal, the record in this case includes many hours of audio and video recordings made in the defendants' house and during the various scenarios. Those recordings provided a uniquely rich context for assessing the effect of the undercover operations on the defendants. The trial court was therefore able to view the defendants' demeanor and body language during the entire confessions, including their jovial delight in revealing certain details about the murders and Rafay's calm explanation that his feelings about killing his parents and sister were tempered by the fact that "[i]t was necessary to . . . achieve what I wanted to achieve in this life. . . . I think of it as a sacrifice . . . a sort of injustice in the world that basically, basically forced me or, and Sebastian, to . . . have to do the thing." This documentation severely undermined the defendants' claims that the undercover operations overcame their will to resist. ¶56 Viewed in their entirety, the circumstances in the case, including the defendants' private conversations, their participation in the scenarios leading up to the confessions, and their conduct and statements during the confessions themselves, indicate that Project Estate did not vitiate the defendants' ability to make independent or rational decisions or otherwise overcome their will. Although psychological and financial factors undoubtedly played a role in the relationship between the defendants and the undercover officers, the record does not indicate that those extrinsic considerations were overwhelming. Rather, defendants made a deliberate choice after weighing competing options, including their long-term personal goals, to accept the assistance of another criminal to eliminate their legal problems. A confession is voluntary "'so long as that decision is a product of the suspect's own balancing of competing considerations.'" ¶57 As defendants correctly assert, the trial court entered minimal written findings and conclusions on their coercion claim. This reflected not only the State's casual response to this particular claim but also the defendants' extensive arguments and testimony directed to their alternative grounds for relief: the unavailability of the silver platter doctrine and the alleged inaccuracies and misstatements contained in the Canadian applications for wiretap approval. ¶58 But the record does not support the defendants' contention that the trial court merely relied on the Canadian court determination that the confessions were voluntary under Canadian law. Issue 2: CrR 3.3 and Constitutional Speedy Trial [7-10] ¶59 Burns and Rafay next contend that the State violated their speedy trial rights under both CrR 3.3 and the state and federal constitutions. ¶60 The State charged Burns and Rafay with three counts of aggravated first degree murder on July 31, 1995. The RCMP arrested the defendants on the same day. Under certain circumstances, Washington law authorizes imposition of the death penalty for aggravated murder. ¶61 The United States formally requested extradition on September 25, 1995. Article 6 of the extradition treaty between the United States and Canada provides, When the offense for which extradition is requested is punishable by death under the laws of the requesting State and the laws of the requested State do not permit such punishment for that offense, extradition may be refused unless the requesting State provides such assurances as the requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed. On July 12, 1996, the Canadian minister of justice signed the extradition order, concluding there were no special circumstances requiring the death penalty assurances. ¶62 Burns and Rafay appealed the minister's decision. On June 30, 1997, in a 2-1 decision, the British Columbia Court of Appeal set aside the minister's order and directed him to seek the article 6 assurances. ¶63 On February 15, 2001, the Canadian Supreme Court affirmed the Court of Appeal's decision. The Court concluded that in light of recent developments, including Canada's complete rejection of the death penalty, the international opposition to the death penalty, the relative youth of the defendants, increasing concerns about potential wrongful convictions, and the lengthy delays and psychological trauma endured by death row inmates, death penalty assurances "are constitutionally required in all but exceptional cases" and that the current case did not present exceptional circumstances. ¶64 On March 21, 2001, after the King County Prosecutor's Office provided the necessary death penalty assurances, the minister issued the surrender order, and Burns and Rafay were turned over to the United States. They were arraigned on April 6, 2001. ¶65 Both defendants eventually moved to dismiss under CrR 3.3 for violation of their speedy trial rights, arguing that the State unnecessarily delayed their arraignment after the filing of charges. The trial court denied the motion on February 18, 2003, concluding that the defendants were not amenable to process until the Canadian Supreme Court ruled on the extradition issue and that the State had no obligation to waive the potential application of the death penalty until Canadian legal proceedings were concluded. ¶66 We review alleged violations of the speedy trial rule and the constitutional right to a speedy trial de novo. ¶67 As construed in State v. Striker ¶68 Generally, "amenable to process" means that the defendant is liable or subject to Washington law. ¶69 The defendants' reliance on State v. Anderson ¶70 Unlike the defendant in Anderson, Burns and Rafay resisted extradition until after the Canadian Supreme Court's decision, when King County offered the necessary death penalty assurances. They claim that they were amenable to process because the State merely had to provide the necessary death penalty assurances, either at the time it filed the extradition request or, at the latest, when the British Columbia Court of Appeal reversed the minister's surrender order. ¶71 Essentially, the defendants maintain that the State was required to bargain away the right to seek the death penalty before the extradition proceeding was concluded. They provide no authority or reasoned legal argument to support the imposition of such an obligation. ¶72 Defendants' allegations of an unnecessary delay rest in part on the false assumption that Canadian law bars the extradition of Canadian citizens to the United States to face the death penalty. But as the Canadian Supreme Court noted in its decision, the Canadian Constitution does not prohibit outright the extradition of Canadian citizens without death penalty assurances, and the minister of justice retains discretion under the extradition treaty to order extradition without death penalty assurances. The British Columbia Court of Appeal's decision did not conclude the legal dispute because the Canadian Supreme Court accepted further review. Defendants have not identified any Canadian law that obligated the State to waive its efforts to extradite the defendants to face the death penalty before the Canadian legal proceedings concluded. ¶73 Under the circumstances, the defendants were not amenable to process for purposes of CrR 3.3 until the extradition proceedings were complete. Accordingly, we do not inquire into whether the State exercised good faith or due diligence in bringing the defendants to trial. The State did not violate the defendants' speedy trial rights under CrR 3.3. ¶74 Defendants also contend that the long trial delay violated their Sixth Amendment right to a speedy public trial. The State urges this court to decline to address the constitutional speedy trial claim because it was not presented to the trial court. However, we need not decide whether the alleged error was properly preserved at trial or satisfies the requirements of RAP 2.5 because the constitutional speedy trial claim fails in any event. [11, 12] ¶75 When determining whether a trial delay is unconstitutional under the Sixth Amendment, a court considers the balancing test set forth in Barker v. Wingo. ¶76 The State concedes that the nearly six-year delay from arrest to arraignment satisfies this requirement, triggering consideration of the remaining Barker factors to determine the nature of the delay. These include the length and reason for the delay, whether the defendant has asserted his or her speedy trial rights, and the manner in which the delay prejudiced the defendant. [13] ¶77 In assessing the reasons for the delay, a court considers, among other things, "'whether the government or the criminal defendant is more to blame for th[e] delay.'" [14] ¶78 The crux of the defendants' constitutional speedy trial argument is that the State caused the long delay by refusing to provide the death penalty assurances in a timely manner. But as with the defendants' essentially identical challenge under CrR 3.3, they fail to cite any authority suggesting that the State had an obligation to waive the potential application of the death penalty before Canadian extradition proceedings concluded. Nor have they alleged that anything within the State's control would have accelerated the Canadian extradition process. Under the circumstances, the defendants' resistance to extradition was the primary cause of the delay. Federal courts have uniformly rejected Sixth Amendment speedy trial claims where the trial delay arises from the defendant's resistance to formal extradition requests. ¶79 The defendants have provided no meaningful analysis of the remaining Barker factors. The defendants made only minimal efforts to obtain a speedy trial. Rafay did not assert his right to a speedy trial until October 19, 1999, more than four years after the State filed the charges. Burns did not demand a speedy trial while in Canada. Instead, in April 2000 Burns informed the State that the defendants would voluntarily appear for trial if the State agreed not to seek the death penalty. [15] ¶80 In assessing the prejudice factor, a court looks to the effect of the delay on the interests protected by the right to a speedy trial, including preventing harsh pretrial incarceration, minimizing a defendant's anxiety and worry, and limiting impairment to the defense. [16] ¶81 Here, the defendants rely solely on the presumption of prejudice and do not allege that the delay impaired their defense. ¶82 Although the length of the delay in this case was significant, a consideration of all of the factors in this case shows no constitutional speedy trial violation. Issue 3: Whether Defense Counsel's Decision To Inform the Jury that the Case Did Not Involve the Death Penalty Constituted Ineffective Assistance of Counsel ¶83 Rafay and Burns contend that trial counsel provided constitutionally deficient assistance when they agreed that prospective jurors could be told the case did not involve the death penalty. They argue that this information likely made jurors less careful in their deliberations and more likely to convict. Therefore, counsel's deficient performance was sufficiently prejudicial to require reversal. Because we are confident that defendants' highly experienced trial counsel pursued a legitimate strategy, we conclude that their performance was not deficient. [17-19] ¶84 To prevail on a claim of ineffective assistance, the defendant must show both (1) that the attorney's representation fell below an objective standard of reasonableness and (2) resulting prejudice, i.e., a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. ¶85 On September 22, 2003, the parties discussed various procedures for conducting voir dire, including the upcoming deadline for the submission of proposed jury questionnaires. Based on the issuance of 3,000 summonses, the trial court planned to start voir dire with 300 potential jurors who would fill out the questionnaire. The appellate record does not disclose what discussions occurred during preparation of the questionnaire, but defendants' counsel eventually agreed to inclusion of the following language: Sebastian Burns and Atif Rafay are charged with three counts of aggravated first degree murder. The case involves the death of Mr. Rafay's father, mother, and sister in July 1994. Sebastian Burns and Atif Rafay have denied the allegations and have entered pleas of not guilty to the charges. This is not a death penalty case. ¶86 During individual voir dire, which lasted about one month, defense counsel did not object when the absence of the death penalty was referred to in various contexts with more than 20 potential jurors who had indicated on the questionnaire that they were opposed to the death penalty or who otherwise raised the subject. ¶87 Generally, in noncapital cases, the jury's sole function is to decide the defendant's guilt or innocence, and it should "'reach its verdict without regard to what sentence might be imposed.'" ¶88 In State v. Townsend, ¶89 Since Townsend, the Supreme Court has reaffirmed these general principles in both State v. Mason If this court was incorrect in Townsend then, upon a proper record, our decision should be challenged in a truly adversarial proceeding. If our reasoning was flawed in Townsend, and there are legitimate strategic and tactical reasons why informing a jury about issues of punishment would advance the interest of justice and provide a more fair trial, then counsel should zealously advance the arguments. The circumstances here supported such a strategy. ¶90 Both Townsend and Murphy were decided years before the defendants' trial. Although the appellate record does not disclose the precise basis for the parties' agreement about the death penalty advisement, we have no reason to doubt that the trial judge and counsel were familiar with and considered those decisions before drafting the juror questionnaire. Moreover, defense counsel objected when the deputy prosecutor apparently exceeded the scope of the parties' agreement by focusing his questioning of potential jurors on whether they were prepared to punish the defendants for the charged crimes. [20, 21] ¶91 The record and defense counsel's own questions during voir dire indicate that defense counsel agreed only to a carefully circumscribed disclosure that did not direct the jurors' attention to punishment in the case before them. Rather, defense counsel sought to ascertain whether potential jurors' views on the death penalty affected their ability to be fair in a case involving a very serious crime. The identification of jurors who would allow the potential punishment to affect their determination of guilt or innocence is a legitimate goal of voir dire.