IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No 76738-1-1
Respondent,
DIVISION ONE
V.
KYLE S. BRYCELAND, UNPUBLISHED OPINION
Appellant FILED July 31, 2017
li••••
SPEARMAN, J. — In a criminal trial, the State cannot comment on the
defendant's exercise of the right to silence. Here, because appellant, Kyle
Bryceland, did not exercise his right to silence prior to trial, any reference to his
pretrial discussions does not implicate that right. In addition, the admission of
statements from a recorded jail call was not an error because they were relevant
as adopted statements indicating consciousness of guilt and not unfairly
prejudicial. Nor did the statements impermissibly comment on the right to silence
or shift the burden of proof. We affirm.
FACTS
On the evening on November 12, 2016, Kyle Bryceland was driving Chris
Jones and Angelo Lundy to pick up Hunter Trerise and Devon Klug at Trerise's
house. Jones got out of the car just shy of Trerise's house. Trerise and Klug
joined Bryceland and Lundy in the car. Then Bryceland unexpectedly pulled into
the alleyway behind Trerise's house, He and Lundy got out of the car to move a
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backpack from the back seat to the trunk. A man walked down the alleyway
toward the car. Wearing a bandana over his face, he approached Trerise's open
car window, stuck a gun through it, and demanded that Trerise give him
everything he had. Trerise gave the man his bracelet and watch, and he and
Klug got out of the car. Trerise ran back to his house and called the police.
Bryceland and Lundy observed the robbery from outside of the car. They
did not run away. Afterwards, Bryceland and Lundy took off in the car with Jones,
who had rejoined them. The three drove to a nearby convenience store, where
they were arrested by police. Trerise identified Jones as the gunman.
That night, Detective Matthew Thuring interviewed Bryceland about the
incident. The detective read Bryceland his rights pursuant to Miranda v. Arizona.'
Bryceland agreed to waive those rights and speak to the detective. He did not
assert his Fifth Amendment right to silence. Bryceland was charged with first
degree robbery and second degree driving with license suspended. He pleaded
guilty to the charge of driving with license suspended.
While In jail pending trial, Bryceland made multiple phone calls that were
recorded. One of the phone calls was with an unidentified woman who advised
Bryceland to think about how he was going to prove his innocence. Bryceland
replied that he "came up with all that already." Exhibit 35 at 9.
At a pretrial hearing for the robbery charge, Bryceland argued that
portions of the jail call should be excluded as an impermissible comment on the
I 384 U.S. 436, 88 S. Ct 1602, 16 L. Ed. 2d 694 (1966).
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right to silence, and because they were irrelevant. The court rejected these
arguments and admitted portions of the call.
At trial, Detective Thuring testified that during his interview, Bryceland was
tired and fidgety, and that he talked in circles. Defense counsel did not object to
this testimony. Bryceland was convicted of first degree robbery. He appeals.
DISCUSSION
Testimony about Police Interview
Bryceland argues for the first time on appeal that Detective Thuring's
description of his behavior during interrogation was an impermissible comment
on his right to silence. The State contends that Bryceland did not preserve this
issue because he did not object to the testimony at trial.
Generally, we do not consider arguments raised for the first time on
appeal. RAP 2.5(a). But a defendant may appeal a manifest error affecting a
constitutional right even if the issue was not raised before the trial court. RAP
2.5(a)(3). The defendant must identify a constitutional error and show that it
resulted in actual prejudice, which means that it had practical and identifiable
consequences in the proceeding. State v. Roberts, 142 Wn.2d 471, 500, 14 P.3d
713 (2000).
Bryceland does not meet the first prong of this test. He does not raise an
issue affecting a constitutional right, because he does not contend that he
invoked his constitutional right to remain silent. State v. Seeley, 43 Wn. App. 711,
714, 719 P.2d 168 (1986) (citing Anderson v. Charles, 447 U.S. 404, 408, 100 S.
Ct. 2180,65 L. Ed. 2d 222 (1980)) ca defendant who voluntarily speaks after
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receiving Miranda warnings has not been induced to remain silent."); State v.
Clark, 143 Wn.2d 731, 765,24 P.3d 1006 (2001) ("When a defendant does not
remain silent and instead talks to police, the state may comment on what he
does not say.") (citing State v. Young, 89 Wn.2d 613, 621, 574 P.2d 1171
(1978)). It is undisputed that Bryceland received Miranda warnings, waived his
constitutional right to silence and agreed to speak to the detective. Because
Bryceland did not assert his right to silence, and was not silent, he cannot show
that Detective Thuring's testimony implicated his constitutional right to silence.
We decline to review this issue under RAP 2.5(a)(3).
Admission of Jail Call
Bryceland argues that the trial court erred by admitting certain statements
made during a jail phone call about defense strategy. He contends the
statements were an improper comment on his right to not testify and improperly
shifted the burden of proof from the State to him. In the alternative he argues that
the statements were not relevant and unfairly prejudicial, so the trial court abused
Its discretion in admitting them. The State argues that the statements were not a
comment on Bryceland's decision to not testify, and that they were properly
admitted as adoptive admissions demonstrating consciousness of guilt.
A criminal defendant has the right to not testify, and exercise of that right
may not be used to imply guilt. State v. Mendes, 180 Wn.2d 188, 194-95, 322
P.3d 791 (2014). Courts consider two factors to determine whether a statement
impermissibly comments on a defendant's silence: (1) whether the prosecutor
manifestly intended the remarks to be a comment on the defendant's exercise of
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No. 76738-1-1/5
his right not to testify and (2) whether the jury would naturally and necessarily
interpret the statement as a comment on the defendant's silence. State v. Barn",
183 Wn.2d 297, 307, 352 P.3d 161 (2015) (citing State v. Crane, 116 Wn.2d 315,
331, 804 P.2d 10 (1991)).
In the jail call, Bryceland and a woman discussed his defense:
Female voice: So, they're gonna say, Kyle, why did you drive said
car to the destination to take a bag out and put it in the trunk? Why
are.. .Why did the owner of this car happen to be in a place that
you.. .you know. ..supposedly dropped him? How.. .how did this
all...you...you gotta understand. They're gonna try to paint the
picture. How did all these events happen? Why? How? Where?
And who? And they're gonna try to back evidence and they're
gonna do all this stuff to prove you guilty.
Male voice: Yah.
[Break in recording]
Female voice: Well ... you know ... you just gotta really think like
what is gonna prove your innocence. How... how you gonna prove
this to people who are gonna sit there and interrogate you? Why
were you here? You have to come up with ... with like an answer.
Male voice: Ah well. I came up with all that already (inaudible)
Exhibit 35 at 9.
Bryceland argues that the statements are an implied comment on his right
to silence and shift the burden of proof. We disagree. The first part of the
statement discusses how Bryceland might defend himself, but never mentions
silence. It is not an impermissible comment on Bryceland's silence. And while the
statement mentions things that the State will do to prove Bryceland's guilt, it does
not suggest that Bryceland bears the burden of proving his innocence.
The second part of the statement does not appear to discuss Bryceland's
exercise of his right to silence at trial. Rather, it discusses interrogation, which is
commonly understood to take place with police officers before trial. And because
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Bryceland did not assert his pre-trial right to silence, the second statement is not
a comment on the exercise of that right. In addition, while there is mention of
Bryceland proving his innocence, viewed in context the statement does not shift
the burden of proof to Bryceland. First, as discussed, the statement appears to
refer to a police interrogation and not a trial. The burden of proof is not at issue in
that context. And second, the statement occurs during a general discussion
about how to prepare a defense with a friend who does not appear to be a
lawyer.
Under these circumstances, a jury would not naturally and necessarily
consider the statement a comment on silence or conclude that Bryceland bore
the burden of proving his innocence. This is especially so in light of the trial
court's instructions on these issues. The jury was instructed to not infer guilt from
the fact that the defendant has not testified. The jury was also instructed that the
State solely bore the burden of proving each element of the crime and that
Bryceland bore no burden to prove his innocence. We presume the jury follows
the court's instructions. State v. Kalebauqh, 183 Wn.2d 578, 586, 355 P.3d 253
(2015).
Bryceland also argues that the statements were irrelevant and prejudicial
and that the trial court abused its discretion by admitting them. The State
contends the statements were adopted by Bryceland and were relevant to show
consciousness of guilt. We agree with the State. When an incriminating
statement is made in the presence of the accused, and the accused does not
deny, contradict, or object to it, the statement and the failure to deny are
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admissible as evidence of acquiescence in its truth. State v. Neslund, 50 Wn.
App. 531, 550, 749 P.2d 725, (1988) (citing State v. Redwine, 23 Wn.2d 467,
470, 161 P.2d 205 (1945)), overruled on other grounds, State v. Robinson, 24
Wn.2d 909, 917, 167 P.2d 986 (1946). Here, Bryceland appeared to acquiesce to
the idea that he needed to come up with an explanation for his presence at the
scene of the robbery and indicated that he had already done so. The exchange is
relevant as evidence of potential fabrication by Bryceland when talking with
police or preparing his defense.
We also reject Bryceland's argument that the evidence should have been
excluded as unfairly prejudicial. Unfair prejudice requires more than testimony
which is simply adverse to the opposing party. State v. Gould, 58 Wn. App. 175,
180, 791 P.2d 569 (1990). Bryceland argues that the statements are unfairly
prejudicial because they show guilt absent direct evidence that he had prior
knowledge of the robbery. But simply because the evidence is probative of guilt
does not make it unfairly prejudicial. The relevance of the statements is not
substantially outweighed by unfair prejudice. The trial court did not abuse its
discretion when it admitted them.
Fees on Anneal
Because the State indicates that it will not seek fees in this case, we do
not address Bryceland's argument that fees not be awarded.
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Affirmed.
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WE CONCUR:
47- carity
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