State v. Rafay

• Citation: 285 P.3d 83,168 Wash.App. 734
• Decision Date: 18 June 2012
• Docket Number: Nos. 55217–1–I, 55218–0–I, 57282–2–I, 57283–1–I.,s. 55217–1–I, 55218–0–I, 57282–2–I, 57283–1–I.
• Parties: STATE of Washington, Respondent, v. Atif Ahmad RAFAY, Appellant. State of Washington, Respondent, v. Glen Sebastian Burns, Appellant.
• Court: Court of Appeals of Washington

168 Wash.App. 734

285 P.3d 83

STATE of Washington, Respondent,

v.Atif Ahmad RAFAY, Appellant.

State of Washington, Respondent,

v.Glen Sebastian Burns, Appellant.

Nos. 55217–1–I, 55218–0–I, 57282–2–I, 57283–1–I.

Court of Appeals of Washington, Division 1.

June 18, 2012.

James Elliott Lobsenz, Carney Badley Spellman, Seattle, WA, Thomas H. Golden, Wilkie Farr & Gallagher LLP, New York, New York, Counsel for Amicus Curiae The Innocence Network.

David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant, Atif Rafay.

Atif Rafay, Monroe, WA, pro se.

Jason Brett Saunders, Gordon & Saunders PLLC, Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant, Glen Sebastian Burns.

Glen Sebastian Burns, Clallam Bay, WA, pro se.

Deborah A. Dwyer, Brian Martin McDonald, King Co. Pros. Ofc./Appellate Unit, Seattle, WA, for Respondent.

LEACH, C.J.

[168 Wash.App. 747]¶ 1 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.¹

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.

[168 Wash.App. 748]¶ 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 returnedthe 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.

[168 Wash.App. 751]¶ 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 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.

[168 Wash.App. 752]¶ 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'...