State v. Evans , 96 Wash. 2d 1 ( 1981 )

Dimmick, J.

This case concerns the State's introduction of defendant's postarrest silence and other alleged prosecutorial misconduct. A jury found the defendant guilty of second degree burglary. The Court of Appeals affirmed. We likewise affirm.

On July 23, 1978, at 11:40 p.m., the defendant, Ronald Evans, and his younger brother were discovered hiding under the desk in the offices of a Sedro Woolley newspaper. A nearby safe had been partially broken into, pieces of the hinge were on the floor as were various tools, including hammers and chisels. Cabinets and drawers throughout the office were open. The defendant was advised of his Miranda rights in the patrol car and again at the police station where he signed an acknowledgment and waiver of his Miranda rights. Officer Pittman and Lieutenant Heitman of the Sedro Woolley Police Department asked the defendant if there was anything he wanted to say. The defendant indicated he did not want to make a statement. However, shortly thereafter, according to Heitman, Evans volunteered the following: "Did they get you out of bed tonight, too?" To this Heitman responded, "Yes, I had to come and see what you were up to." Evans replied, "No good. I wish I had been home in bed." At trial both officers were asked whether the defendant had been advised of his Miranda rights. Each affirmed and testified that after such advisement Evans declined to talk to Lieutenant Heitman except for the above quoted statement. Defense counsel objected to the testimony regarding silence; the objections were promptly sustained. After the second objection, the trial judge instructed the jury to disregard the question and answer. He did allow into testimony the quoted statement of the defendant. It appears from the record this statement was the sought-after testimony which unfortunately elicited the second mention of defendant's silence.

The defendant did not take the stand in his own behalf. The defense was that he did not possess the requisite intent due to intoxication and at most could only be found guilty of criminal trespass. Witnesses testified that defendant had a drinking problem and had been drinking on the evening of July 23. His brother testified they were drunk and that they only went into the building looking for a place to "pass out".

The defendant contends that his conviction must be overturned on the basis that the State's introduction of testimony that defendant was silent following receipt of his Miranda warnings was unduly prejudicial and resulted in a denial of defendant's due process right.

The United States Supreme Court has ruled that the use, for impeachment purposes, of defendant's silence following receipt of Miranda warnings is fundamentally unfair and therefore violates the due process clause of the Fourteenth Amendment since the giving of the warnings implicitly assures defendant that silence will carry no penalty. Doyle v. Ohio, 426 U.S. 610, 617-19, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). In so ruling, the Supreme Court declared that postarrest silence following such warnings is "insolubly ambiguous". Doyle, at 617.

We have extended this rule to instances where the State elicits testimony on defendant's postarrest silence in its case in chief and refers to such silence in its closing argument. State v. Fricks, 91 Wn.2d 391, 588 P.2d 1328 (1979). According to our court,

The highly prejudicial suggestion that defendant's post-arrest silence is consistent with guilt, and not with his exculpating story at trial, can be made just as effectively by questioning the arresting officer or commenting in closing argument as by questioning defendant himself.

State v. Fricks, supra at 396.

The Court of Appeals, in an unpublished opinion, concluded that the error was not prejudicial as "the jury would probably not have rendered a different verdict," both because Evans did not testify in his own behalf and consequently his credibility and the truth of an exculpatory statement were not before the jury, and because of the substantial evidence in support of the State's position. The defendant contends that even though he did not testify in his own behalf, he did call witnesses to present his theory of the case and in view of the intoxication defense, it was inappropriate to say that the defendant's postarrest silence was not relevant to any of the issues.

The testimony was error. The question is whether the error was prejudicial, requiring a new trial.

Although the error may have been constitutional in magnitude, we agree with the Court of Appeals that it was harmless. The Court of Appeals, however, employed a less rigorous standard of review than mandated by the United States Supreme Court. In Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065 (1967), the Supreme Court recognized that there were some constitutional errors which in the particular case may be so insignificant as to be considered harmless. But, according to the court, "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Italics ours.) Chapman, at 24. See also State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980); State v. Vargas, 25 Wn. App. 809, 610 P.2d 1 (1980) (reviewing the history of our courts' tests for determining whether constitutional error is harmless).

A thorough review of the record in the instant case reveals that there was overwhelming evidence supporting the jury's verdict. As such, we find that the error was harmless beyond a reasonable doubt.

Defendant next claims that he was not afforded a fair trial because of several instances of prosecutorial misconduct. The alleged misconduct, in addition to questioning the officers about defendant's postarrest silence, included asking leading questions and eliciting hearsay responses from the witnesses. Moreover, defendant claims that the police injected prejudicial material by referring to defendant as a person with whom the police have had various prior contacts. (This arose when the officer testified he had seen defendant drunk in the past and in his opinion he was not drunk on the night in question.) The trial judge ruled on the objections in an appropriate manner.

Defendant is entitled to a trial free from prejudicial error, not one that is totally error free. See State v. White, 72 Wn.2d 524, 531, 433 P.2d 682 (1967). In determining whether prosecutorial misconduct was present, we must determine whether there was substantial likelihood that the misconduct affected the jury's verdict, thereby depriving the defendant of his right to a fair trial. State v. Music, 79 Wn.2d 699, 715, 489 P.2d 159 (1971); State v. Wilson, 20 Wn. App. 592, 595, 581 P.2d 592 (1978). In reviewing the record, it is clear that the alleged instances of misconduct, taken individually or as a whole, did not affect the jury's verdict.

Affirmed.

Rosellini, Stafford, Utter, Dolliver, Hicks, and Williams, JJ., concur.