State Of Washington, V Jared Allan Pinson ( 2014 )


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    COURT OF APPEALS
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    201LI SEP — 3        Ate 3: 2I
    STATE OF WASHINGTON
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    IN THE COURT OF APPEALS OF THE STATE OF WASH 1'                                                   TON
    DIVISION II
    STATE OF WASHINGTON,                                                      No. 44259 -1 - II
    Respondent,
    v.
    PUBLISHED OPINION
    JARED ALLAN PINSON,
    Appellant.
    MAXA, J. —     Jared Allan Pinson appeals his second degree assault conviction ( domestic
    violence),    claiming that prosecutorial misconduct deprived him of a fair trial. We hold that ( 1)
    the prosecutor engaged in misconduct by arguing in closing that Pinson' s failure to respond to
    police questioning was evidence of his guilt, in violation of the constitutional right against self -
    incrimination; ( 2) although Pinson did not object to the prosecutor' s argument, he did not waive
    his prosecutorial misconduct claim because an instruction would not have cured the prejudice;
    and ( 3) the misconduct resulted in prejudice that had a substantial likelihood of affecting the
    jury' s verdict. Accordingly, we reverse and remand for a new trial.
    FACTS
    On July 29, 2012, Mason County Sheriff' s Deputy Joel Nault responded to a reported
    domestic violence incident in Shelton. He contacted Stacey Campbell, who was in a parking lot
    across the street from her residence. She told Deputy Nault that Pinson had awakened her,
    thrown   her   off the couch where she was   sleeping,   and pulled   her to the floor   by   her   neck.   She
    44259 -1 - II
    said she feared for her life, could not breathe, escaped and ran out the door, and called 911.
    Deputy Nault described Campbell as hysterical, sobbing, and holding her neck, where he noticed
    red markings.
    Deputy Nault and another officer went to Pinson' s house. When Pinson appeared, they
    put him in handcuffs and took him to the front porch. Pinson was cooperative and allowed the
    officers to talk with him. Pinson explained that he and Campbell had been drinking with friends
    and got into a fight. When Deputy Nault asked if the fight was verbal or physical, Pinson did not
    respond. The State charged Pinson with second degree assault ( domestic violence).
    The trial court ruled in limine that the State could not ask Deputy Nault about Pinson not
    answering the question of whether the fight was physical. However, defense counsel asked
    Deputy Nault that question during cross -examination. The trial court ruled that this inquiry
    opened the door for the State to ask about Pinson' s response to Deputy Nault. The prosecutor
    subsequently elicited testimony from Deputy Nault that when he asked Pinson if the fight got
    physical, Pinson became quiet. Defense counsel then had Deputy Nault confirm that Pinson had
    no obligation to talk with him.
    Campbell testified that she and Pinson were in the seventh year of their relationship and
    that she continued to love him. She testified that they had friends over for dinner that July night
    and had been drinking, but she did not remember calling 911 or talking with the police. She
    explained that the redness on her neck and chest depicted in police photographs was from her
    drinking and crying, not from a physical assault.
    2
    44259 -1 - II
    Pinson testified that he and Campbell had an argument that evening, but he did not want
    to deal with it and went to bed instead. The next thing he recalled was the deputies yelling his
    name and telling him to come down the stairs. Pinson stated that he did not answer Deputy
    Nault' s question about whether the fight was physical because " it wasn' t going to help my
    situation   any.   They' re   not   going to believe   me anyways, so   I just didn' t say anything." Report
    of Proceedings ( RP) at 68.
    During closing argument, the State argued that Pinson' s silence when Deputy Nault
    asked if the fight was physical was evidence of his guilt. Pinson did not object to this argument.
    Defense counsel explained in closing argument that Pinson simply did not want to answer any
    more questions, which was his right.
    The jury found that Pinson committed second degree assault and by special verdict that it
    involved domestic violence. Pinson appeals.
    ANALYSIS
    A.         PROSECUTORIAL MISCONDUCT
    Pinson claims that the prosecutor committed misconduct when he urged the jury to treat
    Pinson' s silence as substantive evidence of guilt. The prosecutor stated:
    The next question Deputy Nault asked [ Pinson] is did the fight get physical. And
    his answer to that is not to respond to it, which is evidence of his guilt, that he has
    something to hide, because as I think you all know from your common experience,
    if you were confronted late at night, woken up by two police officers who want to
    take you to jail and they confront you with that type of question, if you' re innocent,
    you' re going to have a wholly different response.
    RP   at   94 ( emphasis   added).     We hold that this statement was improper because it violated
    Pinson' s constitutional right against self -
    incrimination. We further hold that Pinson' s failure to
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    44259 -1 - II
    object at trial did not waive his prosecutorial misconduct claim because the misconduct was so
    flagrant and ill intentioned that an instruction could not have cured the resulting prejudice, and
    that the misconduct resulted in prejudice that had a substantial likelihood of affecting the verdict.
    State v. Emery, 
    174 Wn.2d 741
    , 760 -61, 
    278 P. 3d 653
     ( 2012).
    1.      Legal Principles
    To prevail on a claim of prosecutorial misconduct, a defendant must show that " in the
    context of the record and all of the circumstances of the trial, the prosecutor' s conduct was both
    improper      and prejudicial."      In re Pers. Restraint of Glasmann, 
    175 Wn.2d 696
    , 704, 
    286 P. 3d 673
     ( 2012).     We review the prosecutor' s conduct and whether prejudice resulted therefrom " by
    examining that conduct in the full trial context, including the evidence presented, `` the context of
    the total argument, the issues in the case, the evidence addressed in the argument, and the
    instructions     given   to the   jury.' " State v. Monday, 
    171 Wn.2d 667
    , 675, 
    257 P. 3d 551
     ( 2011)
    internal     quotation marks omitted) (      quoting State v. McKenzie,. 
    157 Wn.2d 44
    , 52, 
    134 P. 3d 221
    2006)).
    When the defendant fails to object to the challenged portions of the prosecutor' s
    argument, he is deemed to have waived any error unless the prosecutor' s misconduct was so
    flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.
    Emery,     
    174 Wn.2d at
      760 -61.   In making this determination, we " focus less on whether the
    prosecutor' s misconduct was flagrant or ill intentioned and more on whether the resulting
    prejudice could     have been       cured."   Emery, 
    174 Wn.2d at 762
    . The defendant must show that ( 1)
    no curative instruction would have eliminated the prejudicial effect, and ( 2) the misconduct
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    44259 -1 - II
    resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery, 
    174 Wn.2d at
    760 -61.
    2.     Improper Argument
    The Fifth Amendment to the United States Constitution                states   that "[   n] o person ...   shall
    be   compelled   in any   criminal case   to   be   a witness against   himself." Article 1, section 9 of the
    Washington State Constitution        states    that "[   n] o person shall be compelled in any criminal case to
    give evidence against      himself." Both provisions guarantee a defendant the right to be free from
    self -
    incrimination, including the right to silence. State v. Knapp, 
    148 Wn. App. 414
    , 420, 
    199 P. 3d 505
     ( 2009). A defendant has the right to remain silent both prearrest and postarrest; i.e.,
    both before and after a defendant is given Miranda' warnings. State v. Burke, 
    163 Wn.2d 204
    ,
    217, 
    181 P. 3d 1
     ( 2008).
    When ( as here) the defendant testifies at trial, the State under certain circumstances can
    use the defendant' s prearrest silence for impeachment.2 Burke, 
    163 Wn.2d at 217
    . However, our
    Supreme Court has held that the State cannot use the defendant' s silence as substantive evidence
    of guilt. Burke, 
    163 Wn.2d at 217
    . More specifically, it is improper for the State to make
    closing arguments that infer guilt from the defendant' s silence. State v. Easter, 
    130 Wn.2d 228
    ,
    236, 
    922 P. 2d 1285
     ( 1996). "[     W]hen 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."   Burke, 
    163 Wn.2d at 217
    . As a result, the prosecutor' s argument that
    1 Miranda v. Arizona, 
    384 U. S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     ( 1966).
    2 The State cannot use a defendant' s silence after Miranda warnings have been given even for
    impeachment. Burke, 
    163 Wn.2d at 217
    .
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    44259 -1 - II
    Pinson' s silence could be used as substantive evidence of his guilt clearly was improper under
    Washington law.
    However, the State argues that•the prosecutor' s argument was justified under Salinas v.
    Texas,          U. S. ,    
    133 S. Ct. 2174
    , 
    186 L. Ed. 2d 376
     ( 2013), where the United States Supreme
    Court identified an exception to the common law rule that a defendant' s silence cannot be used
    as substantive evidence of guilt. In Salinas, the defendant voluntarily agreed to answer a police
    officer' s questions without           being   placed   in custody   or   receiving Miranda   warnings.   
    133 S. Ct. at 2178
    .    But he declined to answer one question by looking down at the floor and remaining silent.
    Salinas, 
    133 S. Ct. at 2178
    . The State used the defendant' s reaction to the officer' s question as
    evidence of his guilt. Salinas, 
    133 S. Ct. at 2178
    .
    The Court held that before a defendant can rely on the privilege against self incrimination
    -
    he or she must invoke it. Salinas, 
    133 S. Ct. at 2179, 2184
    . The only exceptions to the
    invocation requirement are that ( 1) a defendant need not take the witness stand to invoke the
    privilege at trial, and ( 2) a defendant subject to a custodial interrogation or other governmental
    coercion need not invoke the privilege. Salinas, 
    133 S. Ct. at
    2179 -80. The Court refused to
    create a third exception for when the defendant remains .silent and declines to answer a question.
    Salinas, 
    133 S. Ct. at 2181
    . " A suspect who stands mute has not done enough to put police on
    notice   that he     is relying   on   his Fifth Amendment      privilege."     
    133 S. Ct. at 2182
    .
    The defendant in Salinas did not affirmatively invoke his right to remain silent. Salinas,
    
    133 S. Ct. at 2180
    . And he could not rely on the second exception to the general rule requiring
    invocation of the privilege because it was undisputed that the police interview was voluntary and
    that he was free to leave at any time. Salinas, 
    133 S. Ct. at 2180
    . Accordingly, the Court held
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    44259 -1 - II
    that the State' s use of the defendant' s noncustodial silence as substantive evidence of guilt did
    not violate the Fifth Amendment. Salinas, 
    133 S. Ct. at 2180
    .
    But Salinas does not apply here. Although Deputy Nault testified that Pinson allowed the
    officers to talk with him, Pinson testified that at the time of the interview he had been handcuffed
    and taken to the front porch. As a result, Pinson' s interrogation was custodial rather than
    voluntary. See State         v.   Heritage, 
    152 Wn.2d 210
    , 218, 
    95 P. 3d 345
     ( 2004) ( a suspect is in
    custody when a reasonable person in the suspect' s position would feel his freedom.was curtailed
    to the degree   associated        with   a   formal   arrest).   The Court stated in Salinas that " a suspect who is
    subjected to the `` inherently compelling pressures' of an unwarned custodial interrogation need
    not   invoke the     privilege."      Salinas, 
    133 S. Ct. at 2180
     ( quoting Miranda, 
    384 U. S. at 467
    ).
    Accordingly, Burke applies, and it was improper for the State to use Pinson' s silence as evidence
    of his guilt.
    3.     Waiver of Claim
    Because Pinson did not object to the prosecutor' s improper argument, he waived any
    error unless the prosecutor' s misconduct was so flagrant and ill intentioned that an instruction
    could not     have   cured     any resulting    prejudice.       Emery,   
    174 Wn.2d at
    760 -61.   A suitable curative
    instruction may be able to alleviate any prejudice from a brief reference to a defendant' s silence.
    Emery,    
    174 Wn.2d at 761
    .    But here the prosecutor went beyond a mere reference to Pinson' s
    silence. He deliberately and expressly told the jury that Pinson' s silence was evidence of his
    guilt. Further, the prosecutor explained why refusing to answer the question showed that Pinson
    was    guilty —because         an innocent person would have responded differently.
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    44259 -1 - II
    We hold that a curative instruction would not have been effective in the face of this direct
    and specific argument. Even if the trial court had instructed the jury that Pinson' s silence could
    not be used as evidence of his guilt, the prosecutor' s argument was so prejudicial that such an
    instruction would not have eliminated the prejudice. Therefore, Pinson did not waive his
    prosecutorial misconduct argument.
    4.     Prejudice
    To prevail on his prosecutorial misconduct claim, Pinson must also show that the
    misconduct resulted in prejudice that had a substantial likelihood of affecting the jury' s verdict.
    Emery,       
    174 Wn.2d at 761
    , 764   n. 14.   "``   The criterion always is, has such a feeling of prejudice
    been engendered or located in the minds of the jury as to prevent a [ defendant] from having a fair
    trial ?' "   Emery, 
    174 Wn.2d at 762
     ( quoting Slattery v. City ofSeattle, 
    169 Wash. 144
    , 148, 
    13 P. 2d 464
     ( 1932) ( alteration in original)).
    Here, the State had only indirect evidence that Pinson assaulted Campbell. Pinson denied
    assaulting Campbell, and Campbell did not recall what happened that evening. The investigating
    officers did not witness any assault. Instead, the State relied on statements Campbell made in her
    911 calla and to police at the scene that Pinson had assaulted her. But there was evidence that
    Campbell was intoxicated when she made those statements. The State presented evidence' that
    Campbell' s neck and chest were red, but she testified that this redness did not come from an
    assault but rather from her intoxication. As a result, the State' s case was not particularly strong.
    3 The 911 call was played to the jury, but neither party included it in the appellate record. As a
    result, we do not speculate whether the content of the 911 call would be sufficient to overcome
    any   prejudice   resulting from the improper            argument.
    44259 -1 - II
    In addition, an instructional error exacerbated the prosecutor' s improper comment. The
    reasonable doubt instruction inadvertently omitted the sentence from WPIC 4. 01 that stated,
    The defendant has       no   burden   of   proving that   a reasonable    doubt   exists."   11 WASHINGTON
    PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4. 01, at 85 ( 3d ed. 2008)
    WPIC).       This instruction violated our Supreme Court' s directive that the trial courts use only
    WPIC 4. 01 to instruct the jury on reasonable doubt. State v. Bennett, 
    161 Wn.2d 303
    , 318, 
    165 P. 3d 1241
     ( 2007).     Because the jury was not informed that Pinson had no burden of proof, there
    was a greater risk that prosecutorial misconduct would affect the verdict.
    In this context, the State' s argument that Pinson' s silence when asked if the fight turned
    physical was evidence of his guilt was significant. The State essentially asked the jury to find
    that Pinson' s silence was an admission of guilt, and argued that such an admission was sufficient
    to convict him. We hold under the circumstances that this argument had a substantial likelihood
    of affecting the jury' s verdict. As a result, we hold that Pinson sustained his burden of
    establishing prosecutorial misconduct and that his conviction must be reversed.
    B.         ADDITIONAL ARGUMENTS
    Pinson also argues that ( 1) the prosecutor engaged in misconduct by making statements
    that the   evidence   did    not support, ( 2)   his attorney   provided   ineffective   representation, ( 3)   the trial
    court' s reasonable doubt instruction omitted the required statement that Pinson had no burden of
    proving that a reasonable doubt exists, and (4) the sentencing court erred in imposing fees for his
    court appointed attorney. Because we reverse based on prosecutorial misconduct, we need not
    address    these   issues.
    44259 -1 - II
    We reverse and remand for a new trial.
    We concur:
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    t
    HUNT, P. J
    LEr;
    10