Opinion
No. 28882-6-II.
Filed: March 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-1-00208-2. Judgment or order under review. Date filed: 05/24/2002. Judge signing: Hon. Katherine M Stolz.
Counsel for Appellant(s), Brian Patrick McLean, Law Office of Brian P McLean, PO Box 1389, Kent, WA 98035-1389.
Counsel for Respondent(s), Donna Yumiko Masumoto, Attorney at Law, Pierce Co Prosc Atty Ofc, 930 Tacoma Ave S, Tacoma, WA 98402-2171.
Bruce Eric Smith appeals his convictions for first degree felony murder, first degree rape, and vehicular homicide, arguing that two of the State's witnesses violated the Fifth Amendment by commenting on his post-arrest silence. Because any error in allowing the witnesses' remarks was harmless, we affirm.
FACTS
On January 11, 2002, at approximately 7:00 a.m., Bruce Eric Smith parked a Jeep Cherokee outside the Ainsworth Court apartments in Pierce County, Washington. When Smith exited the Jeep, he left the headlights, music system, and engine on, and left the driver's side door open.
Smith entered A.T.'s unlocked apartment while she was getting ready for work. A.T.'s 19-month-old son D. was also in the apartment. A.T. did not know Smith and had never seen him before. Smith pushed A.T. down on her bed, turned her over, ripped off her pants and undergarments, and digitally penetrated her vagina with the tip of his thumb. Smith struck A.T. repeatedly about her face and head as the two struggled. Smith had his penis outside his boxers and manipulated it in an attempt to get an erection. During the attack, A.T. made telephone calls to 911, her workplace, her mother, and her boyfriend.
Around 6:45 a.m., Pierce County Sheriff's Deputy Robert Nilsen was serving a protection order at the apartments in an unrelated case. Nilsen first noticed the Jeep when he parked his unmarked police vehicle. After attempting to serve the order, Nilsen briefly inspected the Jeep and contacted dispatch to inquire about its status and whether it had been chased by other police vehicles. During his second conversation with dispatch, Nilsen learned that 911 had just received a "trouble unknown call with a lady screaming on the phone" from the apartments. II Report of Proceedings (RP) at 294.
A few minutes later, Nilsen heard a commotion coming from inside the apartments. Nilsen then saw Smith, who was not wearing a shirt, exit the apartments and enter the Jeep. Nilsen activated his emergency lights and pulled in behind the Jeep. Smith accelerated backwards and rammed into Nilsen's vehicle.
Nilsen pursued Smith until he saw the Jeep "basically go sideways through the air" after colliding with an Acura driven by Russell Whitaker, II. II RP at 309-010. Whitaker was pronounced dead at the scene. Subsequent testing revealed that Smith had phencyclidine (PCP) in his bloodstream on January 11.
The State charged Smith with first degree felony murder, RCW 9A.32.030(1)(c); first degree burglary, RCW 9A.52.020(1)(b); first degree rape, RCW 9A.44.040(1)(d); third degree assault, RCW 9A.36.031(1)(h); and vehicular homicide, RCW 46.61.520.
The State subsequently dismissed this charge after it had been severed.
At trial, Deputy Paul Evans, an accident reconstructionist with the Pierce County Sheriff's Office, testified:
Q: What happened at that point?
A: I asked [Smith] basically his condition. I saw that his mouth was bloody. I stuck my head into the confines of the car, close enough that I could — if there was any signs or smells of intoxicants that would give me the opportunity to locate them, but at the same time far enough away for an officer safety issue.
Q: What happened when you did that?
A: I didn't smell any odor of intoxicants about his person. I didn't get close enough to his face, it was bloody, it was messed. I didn't smell any. But I asked him, is he okay. Let me look at your face and look at you — he somewhat ignored me.
Q: Why do you say that?
. . .
A: Well, why do I say that he ignored me? Because he wasn't responsive to me.
III RP at 382.
Evans also testified:
Q: Did you make any other observations of [Smith], keeping in mind that you are looking for signs, possible signs of impairment?
A: I did.
Q: Can you explain what those observations were?
A: I noted that his eyes were dilated. I noted that his eyes were bloodshot. He didn't answer me right away. But those are the things that I noted, the physical observations that I noted.
III RP at 384.
Later, Deputy Michael Yamada testified as follows:
Q: What were your initial observations of [Smith's] demeanor?
A: He didn't say much. He wasn't combative or anything. Just, it would seem normal to be dazed, coming out of the vehicle.
. . .
Q: Did you note any other injuries at that point, other than the apparent mouth injuries?
A: No.
Q: When he would speak to you, did you have any difficulty understanding what he was telling you?
A: No. He wasn't really willing to say much.
. . .
Q: Based on your contact with the defendant, did you form an opinion whether or not the defendant appeared to be intoxicated?
A: Just on my personal contact with the subject, no.
Q: Why do you say that?
A: He didn't speak much to me. I didn't note the odor of intoxicants when I was next to him or near him. When he did answer questions and he spoke to me I could not smell any odor of intoxicants.
. . .
Q: Do you recall if he complained of any pain?
A: He wouldn't speak much to me, even about that.
III RP at 445-46, 448-49.
After Evans and Yamada testified, the State requested a CrR 3.5 hearing. At the CrR 3.5 hearing on April 8, the trial court denied Smith's motion for a continuance in order to prepare for the hearing. The trial court concluded that Yamada's questions regarding Smith's identity and health were not interrogation for Miranda purposes and that because Smith did not make any statements to Yamada, it need not address admissibility. The trial court also concluded that the questioning by Nilson and Evans did not implicate Miranda and that Smith's statements were admissible.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
A jury convicted Smith as charged on April 11, 2002. The court sentenced Smith to life in prison without the possibility of parole on May 24, 2002.
ANALYSIS
Smith argues that the trial court denied him due process when it held the CrR 3.5 hearing after it allowed the State to present evidence of his post-Miranda silence. The State responds that the officers' testimony did not comment on Smith's right to remain silent.
The Fifth Amendment to the United States Constitution guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The Fifth Amendment is applicable to the states through the Fourteenth Amendment. Griffin v. California, 380 U.S. 609, 619, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Courts generally treat comments on post-arrest silence as due process violations because Miranda warnings are an implicit assurance to the defendant that silence in the face of the State's accusations carries no penalty. State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996). Accordingly, the State cannot use post-arrest silence as evidence of guilt. Easter, 130 Wn.2d at 236. And the State can circumvent a defendant's right to silence just as effectively by questioning the arresting officer as questioning the defendant. See State v. Fricks, 91 Wn.2d 391, 396, 588 P.2d 1328 (1979) (citing United States v. Impson, 532 F.2d 274 (5th Cir. 1976)).
"A comment on an accused's silence occurs when used to the State's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt." State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996) (citing Tortolito v. State, 901 P.2d 387, 391 (Wyo. 1995)). And a constitutional error occurs if a police witness testifies that a witness refused to speak with him, if the State purposefully elicits testimony as to the accused's silence, or if the State injects the accused's silence into its closing argument. State v. Romero, 113 Wn. App. 779, 790, 54 P.3d 1255 (2002) (citing Easter, 130 Wn.2d at 241, 236.)
But a constitutional error is harmless if this court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). Such errors are presumed prejudicial, however, and the State bears the burden of proving that the error was harmless. Guloy, 104 Wn.2d at 425 (citing State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980)). A reviewing court must decide if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. Guloy, 104 Wn.2d at 425-26 (citing Parker v. Randolph, 442 U.S. 62, 70-71, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979)).
An error of constitutional magnitude occurs only if the prosecutor uses a defendant's post-arrest silence unfairly. State v. Johnson, 42 Wn. App. 425, 431, 712 P.2d 301 (1985). In considering whether constitutional error occurred, we examine (1) the context in which the evidence was revealed in order to determine the extent to which it was called to the jury's attention and (2) the possibility that the jury may have drawn an unfavorable inference from that evidence. Johnson, 42 Wn. App. at 431. Accordingly, a police witness's indirect reference to a defendant's silence, "absent further comment from either the witness or the State," does not amount to constitutional error. Romero, 113 Wn. App. at 790 (citing State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996)). In such cases, the proper harmless error analysis is whether, within reasonable probability, the outcome would have differed absent the error. See, e.g., Johnson, 42 Wn. App. at 432; State v. Rogers, 70 Wn. App. 626, 631, 855 P.2d 294 (1993) (applying the harmless error test in State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984)).
Here, Evans's remarks were part of his testimony regarding his initial investigation of the scene, including his post-arrest contact with the defendant to look for signs of impairment, check Smith's injuries, and interview him about the accident. And though Yamada could not remember the exact questions he asked Smith, he asked general questions about what happened in order to learn Smith's condition. Finally, the prosecutor did not mention Smith's silence in his closing statement. Because of the context in which the evidence was revealed and the relatively low chance that the jury drew a prejudicially unfavorable inference from it, we apply the non-constitutional harmless error test.
Even if the deputies' remarks were error, the record reveals that there is no reasonable probability the trial outcome would have differed absent these errors.
Smith, whom A.T. did not recognize or know, entered her apartment, pushed her down on her bed, turned her over, ripped off her pants and undergarments, and digitally penetrated her vagina. Smith struck A.T. repeatedly about her face and head as the two struggled. Smith had his penis outside his boxers and manipulated it in an attempt to get an erection. A.T.'s boyfriend and neighbors testified about A.T.'s hysterical demeanor immediately following the attack. A.T. and her neighbor saw Smith leave A.T.'s apartment and get into the jeep; Nilsen also saw Smith get into the jeep. And Smith left his coat in the apartment.
Smith backed into Nilsen's unmarked police vehicle, exited the apartment parking lot, and accelerated rapidly as he turned westbound onto 106th street. Nilsen pursued Smith with his emergency lights activated, reaching speeds of around 65 miles per hour. Smith ran a stop sign during the high-speed pursuit. While Nilsen was stopped at a traffic light, he saw the jeep collide with Whitaker's Acura. Whitaker was pronounced dead at the scene.
Dr. Mark Whitehill, one of Smith's experts, testified that in his opinion, Smith's mental abilities were significantly compromised on January 11. But Whitehall conceded on cross-examination that having PCP in one's system does not mean the person is incapable of acting intentionally. He also testified that in his opinion, Smith intended to have sex with A.T. Because Smith's only defense apart from a general denial was diminished capacity because of voluntary intoxication, there is no reasonable probability that the trial's outcome would have differed absent the claimed errors.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, P.J. and HOUGHTON, J., concur.