State v. Burke , 163 Wash. 2d 204 ( 2008 )

¶1

Justin Burke went to a party. There he met and had sex with J.S. J.S. was 15 years old at the time and Burke was 22. He was later charged with third degree rape of a child. At trial, Burke argued that J.S. had told him that she was of legal age to consent, and he reasonably believed her. This would present a statutory defense to third degree rape of a child. As part of its case in chief, the State contended that Burke, when given an opportunity to tell his side of the story, terminated his interview with the police without ever mentioning that he believed J.S. was of age.

Chambers, J.

¶2 Our constitutions protect the right of an accused to remain silent. Griffin v. California, 380 U.S. 609, 614-15, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); State v. Easter, 130 Wn.2d 228, 235, 922 P.2d 1285 (1996). When defendants take the stand, their prearrest silence may be used to impeach their testimony, but their silence may not be used as substantive evidence of guilt. See State v. Clark, 143 Wn.2d 731, 756, 24 P.3d 1006 (2001). Amere reference to a defendant’s silence may be permissible. Because the State invited the jury to infer guilt from Burke’s silence, and attempted to use his silence as substantive evidence of his guilt, we reverse the courts below and vacate Burke’s conviction, without prejudice.

I

¶3 J.S.’s older sister, Jaime, and her friend, Chelsea, shared a basement apartment in the home of Chelsea’s father. Chelsea’s younger sister and J.S.’s friend, Carleen, lived in the upper part of the house. With their father out of town, Chelsea and Carleen decided to have a party in their respective portions of the house. J.S. was invited to the upstairs party, and Burke was invited to the downstairs party. The younger and older groups mingled and many there consumed marijuana and alcohol. Burke and J.S. ended up sitting together on a couch late at night.

14 At some point, Jaime left the party to spend the night elsewhere. A friend told her the next day that Burke and J.S. had been “all over each other.” 3 Report of Proceedings (RP) at 173. Jaime approached her sister about this. J.S. told Jaime that Burke had made repeated advances, which she resisted, but that they had indeed had sex. Jaime confronted Burke, who confirmed that he had had sex with J.S. but asserted it was consensual.

¶5 The police were notified and as part of their investigation, they visited Burke at his home. Burke told the officers that he had consensual sex with a girl he knew only as Jaime’s sister, who “was younger than he thought she was.” Id. at 212. When asked how old she was, he replied he “did not know, but that he knew she was in high school.” Id.

¶6 At about this point, Burke’s father intervened to ask the police if his son would be charged. When told that it was “very possible,” the father advised Burke not to talk to the police until counsel had been consulted. Id. at 213. Burke asked the police if this was possible and was told “yes, [you can] speak to an attorney.” Id. at 214. As the police were leaving, Burke said, “he thought that this was a bunch of shit, that girls at Edmonds Woodway [high school] were always trying to get guys in trouble.” Id.

¶7 The police were asked at trial if Burke ever explained his last comment. An officer testified that “[a]t that time he had already asked pretty much to talk to an attorney, or what I interpreted as, so I did not ask any more questions. ... I believed that at that point when Justin asked me if that was possible, that that was kind of his way of stopping the interview.” Id. at 214-15.

¶8 Burke was charged with RCW 9A.44.079, rape of a child in the third degree. Burke did not dispute the victim’s age or deny he had intercourse with her. But under Washington law, if the defendant “reasonably believed the alleged victim to be [16 years old] based upon declarations as to age by the alleged victim,” the defendant is not guilty. RCW 9A.44.030(2). Burke asserted this defense, arguinghe asked J.S. what year she was in school and how old she was as an icebreaker. He claimed she told him she was 16, about to turn 17.

¶9 The State sought to undermine Burke’s defense on the theory that if J.S. really told him she was 16, he would have said so either to the police at the first interview or when J.S.’s sister called him the next day, furious with him. The State made these arguments in its opening and closing arguments to the jury and stressed Burke’s silence in both direct examination of the investigating officers and in cross-examination of Burke himself.

¶10 For example, in its opening, the State argued:

And for a time the defendant talked to them [police], freely telling them, yeah, I don’t remember what her name was, but it was [Jaime’s] sister, and yes, we had sex. And then interestingly the defendant’s father cut in, perhaps sensing that things, that the police there and perhaps sensing that it wasn’t necessarily okay to have sex with [J.S.].... [T]he defendant’s father in effect ended the interview by telling the defendant, his own son, that he shouldn’t be talking to police. And that pretty much did end the interview ....

[The police] were there to gather the defendant’s side of the story. That is all he chose to give them and they left.

3 RP at 11. During its case in chief, the State questioned Detective Richardson:

Q. What happened next?

A. Then at that point Justin’s father basically came into the room and asked if any charges were going to be filed in the case.

Q. Asking you this question?

A. Yes. And I told him it’s very possible that charges would be filed.

A. Okay. Father advised Justin not to make any other statements until he spoke to an attorney. And then Justin asked me if that was possible. And I told him that yes, he could speak to an attorney.

Q. After you advised him of that, did he have any more words for you?

A. Then he made a statement that he thought that this was a bunch of shit, that girls at Edmonds Woodway were always trying to get guys in trouble.

Q. Did he ever explain that to you?

A. At that time he had already asked pretty much to talk to an attorney, or what I interpreted as, so I did not ask any more questions. That was kind of his -

Q. That was his parting shot?

A. Yeah, his parting statement, I guess ....

Q. And so the defendant didn’t need to be advised of his Constitutional Rights, but you felt as though, at that time, he had said enough about an attorney that you didn’t feel you should ask him any more questions?

A. Yeah, at that point basically it was a voluntary interview and I felt that with his father interjecting into the conversation and saying that Justin, don’t make any more statements until you talk to an attorney, I believed that at that point when Justin asked me if that was possible, that that was kind of his way of stopping the interview.

3 RP at 213-15. During cross-examination, the prosecutor asked Burke directly to explain why he failed to say that he thought J.S. was 16 at the time of the police interview. The point was returned to during closing arguments. Burke was found guilty of statutory rape.

¶11 Burke moved for a new trial, arguing the prosecutor violated his right to silence by commenting on his father’s advice to end the interview and his failure to report to police J.S.’s alleged declaration of her age. The trial court denied his motion. Burke unsuccessfully appealed to the Court of Appeals. We granted review. State v. Burke, 158 Wn.2d 1019, 149 P.3d 378 (2006).

II

¶[12 Burke’s unsuccessful motion for a new trial was premised on the theory that the State violated his right to silence "under the Fifth Amendment to the United States Constitution¹ and article I, section 9 of the Washington State Constitution.² We traditionally review denials of a motion for a new trial for abuse of discretion. State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008 (1967). Among other things, discretion is abused if it is exercised on untenable grounds or for untenable reasons, such as a misunderstanding of the underlying law that causes nonharmless error in the trial. Braam v. State, 150 Wn.2d 689, 706, 81 P.3d 851 (2003).

¶13 Burke argues that the prosecutor improperly invited the jury to infer guilt from his exercise of the constitutional right to remain silent.³ The State argues that Burke did not clearly and unequivocally exercise his right to remain silent, and at most, Burke was only partially silent. The dissent argues we should not review this issue because Burke did not preserve the error by objecting at trial and there is no manifest constitutional error. See RAP 2.5(a)(3). However, neither party addresses manifest constitutional error for several reasons. First, although there was no contemporaneous objection, the issue was raised in the trial court through a postverdict motion for a new trial. The trial court decided the motion on the merits despite the lack of objection. The Court of Appeals also reached the merits of the issue. Therefore, we presume the issue is properly before us and reach the merits of the case.

¶14 We will first briefly review when the State may raise the defendant’s silence during a criminal trial. In 1926, the United States Supreme Court held that a defendant who elected to testify could be questioned about his prior silence at a previous trial on the same charges. Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926). Raffel was indicted for conspiracy to violate the National Prohibition Act, Pub. L. No. 66, 41 Stat. 305. Id. at 495. Raffel did not testify at his first trial, and the jurors were unable to reach a verdict. Id. A prohibition agent testified that during the search of a drinking establishment, Raffel admitted he was the owner of the place. Id. At the second trial, Raffel took the stand and denied admitting ownership. Raffel’s silence at his previous trial was raised and he was convicted. Id. The Supreme Court affirmed, noting:

The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of the law against self-incrimination which would require the extension of immunity to any trial or to any tribunal other than that in which the defendant preserves it by refusing to testify.

Id. at 499.

¶15 In 1964, the Supreme Court ruled that the Fifth Amendment applied to the states via the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). A year later, in Griffin, the Court addressed whether the Fifth Amendment prevented the states from commenting on a defendant’s invocation of the right to silence. Griffin, 380 U.S. 609. Griffin was prosecuted for murder in California. Id. Article I, section 13 of the California Constitution provided that “ ‘in any criminal case, whether the defendant testifies or not, his failure to explain or deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.’ ” Griffin, 380 U.S. at 610. Griffin failed to testify, his silence was explored by the prosecution, and the court instructed the jury according to the California Constitution. Id. at 610-11. Griffin was convicted and the death penalty was imposed. Id. at 609, 611. Justice Douglas spoke for the court:

For comment on the refusal to testify is a remnant of the “inquisitorial system of criminal justice,” which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused’s knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.

Id. at 614 (citations and footnote omitted) (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964) and citing People v. Modesto, 62 Cal. 2d 436, 452-53, 398 P.2d 753, 42 Cal. Rptr. 417 (1965)).

¶16 In 1976, the Supreme Court addressed a similar issue. In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), after having been arrested for selling marijuana and given Miranda⁴ warnings, Doyle remained silent. Id. at 611. Doyle and his codefendant later testified at trial that they had been framed. Id. at 612-13. For impeachment purposes, the prosecutor cross-examined them about the fact they did not tell police they thought they were being framed at the time of arrest. Id. at 613-14. The Supreme Court reversed the convictions, concluding the government had broken its promises given in the Miranda warnings and violated due process of law. Justice Powell explained:

Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Id. at 618.

¶17 In 1980, the Supreme Court again examined prosecutorial questioning of a defendant regarding prearrest exercise of silence, but in this case, Jenkins v. Anderson, 447 U.S. 231, 232-33, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980), Miranda warnings had not been given. In Jenkins, the accused was charged with murder but convicted of manslaughter. Id. at 232, 234. Jenkins admitted stabbing the victim but claimed self-defense. Id. at 234. He did not report the incident to the police until about two weeks after the killing. Id. at 232-33. Jenkins testified that the victim attacked him with a knife. Id. at 234. During cross-examination, the prosecutor elicited from Jenkins that he had not reported the stabbing to the police for two weeks. Id. at 233.⁵

¶18 The Jenkins Court distinguished Doyle, suggesting it relied on the fact that Miranda warnings were given. In Jenkins, the Court concluded the critical issue is whether the government compels the exercise of a constitutional right. Id. at 236. The Court held that the “ ‘threshold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.’ ” Id. (internal quotation marks omitted) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973)). The Court relied upon the Raffel Court’s explicit rejection of the possibility of impeachment by prior silence as an impermissible burden upon the exercise of the Fifth Amendment. Id. at 236-37 (citing Raffel, 271 U.S. at 499). Finally, the Jenkins Court made it clear that each state jurisdiction remained free to formulate its own evidentiary rules with respect to the admissibility of such impeachment evidence, stating:

Our decision today does not force any state court to allow impeachment through the use of prearrest silence. Each jurisdiction remains free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial.

Id. at 240.

f 19 Several decisions issued by this court also bear on our analysis. In 1996, this court issued two companion decisions involving prearrest statements. Easter, 130 Wn.2d 228; State v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996). Both involved prearrest silence. In Easter, the defendant maintained his silence through trial. In Lewis, the defendant testified. In Easter, following a motor vehicle collision in which four persons were injured, Easter was charged with four counts of vehicular assault. Easter, 130 Wn.2d at 231. Easter did not speak to officers at the scene nor did he testify at trial. Id. at 231-32. The investigating officer took the witness stand and described Easter’s prearrest silence as that of a “ ‘smart drunk.’ ” Id. at 233. Painting Easter as a smart drunk, who knew better than to cooperate with the police, became a theme of the prosecutor. Id. at 233-34. We noted numerous authorities holding that prearrest silence is not admissible because of its low probative value and high potential for undue prejudice. Id. at 235 n.5. But we concluded that ‘‘[t]he use of pre-arrest silence as substantive evidence of guilt implicates the Fifth Amendment and is not merely an evidentiary issue.” Id. at 235. We reversed Easter’s conviction.

¶20 We affirmed the conviction in Lewis. There, the defendant argued his prearrest silence was used by the prosecution as substantive evidence of guilt. Lewis, 130 Wn.2d 700. Lewis was charged with rape. Id. at 701. He was alleged to have demanded sex from women to whom he supplied drugs. Id. at 702. The arresting officer testified on direct that he had contacted Lewis by phone and Lewis admitted that the women had been in his apartment. Id. at 702-03. The officer also testified that Lewis denied that anything had happened and that “ ‘my only other conversation was that if he was innocent he should just come in and talk to me about it.’ ” Id. at 703. We reaffirmed the distinction noted in Easter between the proper use of prearrest silence to impeach the defendant’s testimony and the improper use of silence as substantive evidence of the defendant’s guilt.

In Easter, we resolved this issue. We held that a defendant’s pre-arrest silence, in answer to the inquiries of a police officer, may not be used by the State in its case in chief as substantive evidence of defendant’s guilt. . . .

Since we have concluded that pre-arrest silence is not admissible as substantive evidence of an accused’s guilt, the question becomes whether Lewis’s silence was used as evidence of his guilt. A police witness may not comment on the silence of the defendant so as to infer guilt from a refusal to answer questions.

Id. at 705. The majority in Lewis concluded the officer’s testimony was not used as substantive evidence of guilt.⁶ Id. at 706. We rejected the holding by the Court of Appeals that a defendant’s testimony always transforms commentary on the defendant’s prearrest silence into impeachment. Id. at 706 n.2. We observed:

The Court of Appeals found that the evidence of silence was admissible because Lewis later testified; hence, the prior silence would have been admissible as impeachment evidence. We disagree. If evidence of silence comes in to show guilt in the State’s case in chief, then a defendant may be forced to testify to rebut such an inference.

Id.

¶21 Finally, when the defendant’s silence is raised, we must consider “whether the prosecutor manifestly intended the remarks to be a comment on that right.” State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991). The Crane court then noted that a prosecutor’s statement will not be considered a comment on a constitutional right to remain silent if “standing alone, [it] was ‘so subtle and so brief that [it] did not “naturally and necessarily” emphasize defendant’s testimonial silence.’ ” Id. (second alteration in original) (quoting State v. Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978)). A remark that does not amount to a comment is considered a “mere reference” to silence and is not reversible error absent a showing of prejudice. Lewis, 130 Wn.2d at 706-07. Thus, focusing largely on the purpose of the remarks, this court distinguishes between “comments” and “mere references” to an accused’s prearrest right to silence.⁷

¶22 In summary, often distinguished as prearrest silence and postarrest silence, the Supreme Court has established two basic rules: one based upon the Fifth Amendment right to remain silent before Miranda warnings are given and one based upon due process under the Fourteenth Amendment when the State issues Miranda warnings, promising defendants that their silence will not be used against them. The Fifth Amendment prohibits impeachment based upon the exercise of silence where the accused does not waive the right and does not testify at trial. Griffin, 380 U.S. 609. Due process under the Fourteenth Amendment also prohibits impeachment based on silence after Miranda warnings are given, even if the accused testifies at trial. Doyle, 426 U.S. at 619. However, no constitutional protection is violated if a defendant testifies at trial and is impeached for remaining silent before arrest and before the State’s issuance of Miranda warnings. Jenkins, 447 U.S. at 240. Finally, states are permitted to formulate their own evidentiary rules, so long as they do not fall below minimum constitutional standards. Id.

¶23 We have concluded that even when the defendant testifies at trial, use of prearrest silence is limited to impeachment and may not be used as substantive evidence of guilt. Lewis, 130 Wn.2d at 705-06 (citing Easter, 130 Wn.2d 228). In circumstances where silence is protected, a mere reference to the defendant’s silence by the government is not necessarily a violation of this principle; however, when the State invites the jury to infer guilt from the invocation of the right of silence, the Fifth Amendment and article I, section 9 of the Washington Constitution are violated. Id. at 706-07; see also Crane, 116 Wn.2d at 331. With these principles in mind, we turn to the arguments of the parties.

¶24 The case before us involves an interview with law enforcement occurring before Miranda warnings were given. Because Burke testified at trial, his prearrest silence could be used to impeach him without violating his Fifth Amendment or article I, section 9 right to remain silent. However, prearrest silence could not be used against the defendant as substantive evidence of guilt. “The cases that have permitted testimony about the defendant’s silence have done so only for the limited purpose of impeachment after the defendant has taken the stand, and not as substantive evidence of guilt when the defendant has not testified.” Easter, 130 Wn.2d at 237. As we observed in Lewis, “[i]f evidence of silence comes in to show guilt in the State’s case in chief, then a defendant may be forced to testify to rebut such an inference.” Lewis, 130 Wn.2d at 706 n.2.⁸

¶25 The crux of the State’s argument is that when given the opportunity to tell his side of the story during the prearrest interview with Detective Richardson, Burke did not mention that J.S. told him she was 16. The State argues that what Burke did say and what he did not say by remaining silent during the interview could be used to imply his guilt. A proper analysis requires careful attention to what was said, what was not said, the invocation of silence, proper impeachment, and the use of silence itself to imply guilt.

f 26 As we have already stated, because Burke’s interview with Detective Richardson was pr e-Miranda warnings and because Burke testified at trial, neither his Fourteenth Amendment nor his Fifth Amendment rights to silence are violated if the State uses silence to impeach him. However, our analysis does not end there. This court has joined other courts in being skeptical of the probative value of impeachment based on silence. Easter, 130 Wn.2d at 235 n.5. As explained by the New York Court of Appeals:

Silence in these circumstances is ambiguous because an innocent person may have many reasons for not speaking. Among those identified are a person’s “awareness that he is under no obligation to speak or the natural caution that arises from his knowledge that anything he says might be later used against him at trial,” a belief that efforts at exoneration would be futile under the circumstances or because of explicit instructions not to speak from an attorney. Moreover, there are individuals who mistrust law enforcement officials and refuse to speak to them not because they are guilty of some crime, but rather because “they are simply fearful of coming into contact with those whom they regard as antagonists.” In most cases it is impossible to conclude that a failure to speak is more consistent with guilt than with innocence.

People v. De George, 73 N.Y.2d 614, 618-19, 541 N.E.2d 11, 543 N.Y.S.2d 11 (1989) (citations omitted); see also People v. Cetlinski, 435 Mich. 742, 760, 460 N.W.2d 534 (1990) (noting that a failure to come forward is ambiguous because a defendant is under no duty to do so); Doyle, 426 U.S. at 617 n.8 (noting that even aside from Miranda warnings, silence may have several explanations consistent with innocence and is of dubious probative value).

¶27 This court has been very careful to limit the use of silence to impeachment only. Impeachment is evidence, usually prior inconsistent statements, offered solely to show the witness is not truthful. State v. Thorne, 43 Wn.2d 47, 53, 260 P.2d 331 (1953). Such evidence may not he used to argue that the witness is guilty or even that the facts contained in the prior statement are substantively true. Id. Previously limited to opposing witnesses, the current rule is that even a party’s own witness may be impeached with prior inconsistent statements. ER 607. An accused’s failure to disclose every detail of an event when first contacted by law enforcement officials is not per se an inconsistency

¶28 In addition to the reasons outlined by the New York court above for being cautious about the probative value of silence for impeachment, at the time of the interview Burke may not have appreciated the significance of J.S.’s age. He may not have known that if she was 16 or 17, rather than 15, it was a defense to the crime. Based upon Burke’s testimony at trial as developed by cross-examination, both statements Burke did make as well as his omissions may have been admissible as impeachment.

¶29 The State also argues that the right of silence is not implicated because Burke never invoked his right to counsel during the police interview. The Court of Appeals agreed because no such right had accrued at the time of the police interview. State v. Burke, noted at 131 Wn. App. 1055, 2006 Wash. App. LEXIS 287, at *7 (unpublished). Further, the Court of Appeals observed correctly that Burke did not assert his right to remain silent but instead voluntarily continued to speak, making derisive comments about girls attending J.S.’s school. The invocation of the Sixth Amendment right to counsel requires an unambiguous request for counsel. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). A suspect must clearly articulate his desire to have counsel present such that a reasonable police officer under the circumstances would understand the statement to be a request for an attorney. Id. Officers are not required to cease questioning in the face of an equivocal or ambiguous request for counsel. Id. at 459-60. Had the police continued to question and had Burke continued to talk, and the issue before us was the admissibility of those subsequent statements, we may agree with the State.⁹

¶30 However, the issue before us is not the admissibility of Burke’s subsequent statements, but whether the State improperly commented on what Burke did not say so as to burden his right of silence. Unlike the Sixth Amendment right to counsel, the Fifth Amendment right of silence requires no magic words.¹⁰ Quinn v. United States, 349 U.S. 155, 164, 75 S. Ct. 668, 99 L. Ed. 964 (1955) (privilege asserted by conduct “sufficiently definite to apprise” the listener that the claim is being made). “No special set of words is necessary to invoke the right,” and “silence in the face of police questioning is quite expressive as to the person’s intent to invoke the right.” Easter, 130 Wn.2d at 239 (citing Quinn, 349 U.S. at 162). Importantly, the investigative officer accepted Burke’s question if it was possible to speak with an attorney as an assertion of his right to silence, not just of his right to counsel. At trial, the State offered as substantive evidence the investigating officers’ testimony, “ [a] t that time he had already asked pretty much to talk to an attorney, or what I interpreted as, so I did not ask any more questions .... I believed that at that point when Justin asked me if that was possible, that that was kind of his way of stopping the interview.” 3 RP at 214-15.

¶31 The State stressed that when offered the opportunity to speak to an attorney, Burke terminated the interview. The State invited the jury to consider the invocation of the right to counsel to be evidence of guilt. This was improper. It would be incongruous for the State to tell the jury that Burke exercised his right to silence, to suggest he did so because of guilt, and then for the State to argue that the inference from guilt by silence was proper because Burke did not invoke his right to remain silent unequivocally. Under these facts, we decline the State’s invitation to hold that Burke never invoked his right to silence. Courts are appropriately reluctant to penalize anyone for the exercise of any constitutional right.

¶32 We agree with the dissent that this court distinguishes between comments on silence and mere reference to silence. But this case does not involve a mere reference to silence. The prosecution intentionally invited the jury to infer guilt from Burke’s termination of his interview with Detective Richardson. The prosecutor, in his opening statement, attempted to penalize Burke for terminating the interview and suggested Burke did so because he had done something wrong. The prosecutor described Burke’s father as “sensing that it wasn’t necessarily okay to have sex with [J.S.],” then advising his son to end the interview. 3 RP at 11. In the same breath, the State noted “that [the father’s comments] pretty much did end the interview.” Id. The inference the jury is invited to make is that Burke ended the interview because he adopted his father’s advice, based on the idea that the guilty should keep quiet and talk to a lawyer.

¶33 The State imputed to Burke the reasons it believed his father gave for ending the interview: a “sense” that Burke’s sexual encounter with J.S. was illegal. An analysis of imputation examines the prosecutor’s intent and whether the jury would “naturally and necessarily” take the comments as referring to the defendant’s silence. See United States ex rel. Smith v. Rowe, 618 F.2d 1204, 1209 (7th Cir.), vacated and remanded on other grounds sub nom. Franzen v. Smith, 449 U.S. 810, 101 S. Ct. 57, 66 L. Ed. 2d 13 (1980). The State thus advanced the link between guilt and the termination of the interview. The implication is that suspects who invoke their right to silence do so because they know they have done something wrong. We conclude the State violated Burke’s right to silence.

¶34 The question remains whether this error was harmless. A constitutional error is harmless only if the reviewing court is convinced beyond a reasonable doubt that any reasonable jury would reach the same result absent the error and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. Easter, 130 Wn.2d at 242. The trial boiled down to whether the jury believed or disbelieved Burke’s story that the victim told him she was 16. Repeated references to Burke’s silence had the effect of undermining his credibility as a witness, as well as improperly presenting substantive evidence of guilt for the jury’s consideration. We hold the error was not harmless.¹¹

Ill

¶35 We conclude that the State impermissibly commented upon the defendant’s assertion of the right to remain silent so as to invite the jury to infer guilt from the exercise of a constitutionally protected right. We find the trial court exercised its discretion on untenable grounds, reverse, and vacate the conviction, without prejudice.

C. Johnson, Sanders, Owens, and Fairhurst, JJ., concur.

1 The Fifth Amendment states, in part, no person “shall... be compelled in any criminal case to be a witness against himself.” This provision applies to states through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

2 Article I, section 9 states in relevant part, “No person shall be compelled in any criminal case to give evidence against himself.”

3 Both parties make considerable arguments based upon the Sixth Amendment right to counsel. In both briefing and oral argument, Burke fails to distinguish between the right to silence and the right to counsel. Although the right to counsel implicates the right to silence, the two are separate. See Connecticut v. Barrett, 479 U.S. 523, 528-29, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987).

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

5 Jenkins did testify that he had reported the episode to his probation officer two days after the stabbing. Jenkins, 447 U.S. at 233.

6 In Lewis, the majority found that the officer’s testimony was not even referring to the defendant’s silence, let alone an implication that such silence was the result of the defendant’s guilt. Lewis, 130 Wn.2d at 705-06. Justices Madsen and Alexander would have found that the officer was testifying about the defendant’s prearrest silence and implying silence reflected guilt but that the commentary was harmless error. Id. at 710-11 (Madsen, J., concurring).

7 The following are some examples of what courts have and have not considered “comments” on the right to silence. In Lewis, an officer testified that he told the defendant “ ‘that if he was innocent he should just come in and talk to me about it.’ ” Lewis, 130 Wn.2d at 703. This court held that the officer’s statement did not constitute an improper comment and instead was mere reference. Id. at 705-06. In contrast, the following have been found to be impermissible comments on the right to remain silent: (1) police officer characterized the defendant as evasive and a “ ‘smart drunk’ ” after the defendant refused to answer questions at an accident scene, Easter, 130 Wn.2d at 233; (2) police officer testified, “ T read him his Miranda warnings, which he chose not to waive, would not talk to me,’ ” State v. Romero, 113 Wn. App. 779, 793, 54 P.3d 1255 (2002); (3) prosecutor asked the officer whether the defendant said anything in response to receiving Miranda warnings, and there was no purpose other than to inform the jury that the defendant refused to speak with police without the presence of an attorney, State v. Curtis, 110 Wn. App. 6, 9, 37 P.3d 1274 (2002); and (4) prosecutor elicited the fact that the defendant carried his attorney’s business card, which listed his rights if stopped for suspicion of driving under the influence, State v. Nemitz, 105 Wn. App. 205, 213, 19 P.3d 480 (2001).

8 We do not mean to prevent anticipatory impeachment. It may be proper upon the appropriate foundation and with the court’s permission.

9 We agree with the dissent that Burke’s statements and omissions before he invoked silence were admissible. Such statements and omissions are sometimes referred to as partial silence. However, partial silence adds little to our review. To the extent the defendant made statements inconsistent with a subsequent defense, there is no silence and the Fifth Amendment does not apply. See State v. Young, 89 Wn.2d 613, 620-21, 574 P.2d 1171 (1978).

We respectfully part company with the dissent in our interpretation of the prosecutor’s opening argument (compounded by the officer’s testimony) and in our assessment of its impact. The opening argument did not only emphasize that Burke had a full opportunity to tell his story. See dissent at 226-27. Nor did the comment relate only to Burke’s father. See dissent at 226. The opening argument directly linked Burke’s termination of the interview with the idea that it was “not ok” to have sex with J.S., i.e., that he was guilty of rape.

10 Both parties make considerable arguments based upon the Sixth Amendment right to counsel. While the right to counsel may trigger certain protections, the right to remain silent may be exercised at any time. Easter, 130 Wn.2d at 238. We rest our opinion on the Fifth Amendment, not the Sixth Amendment.

11 Given our disposition, we do not reach the State’s remaining arguments.