State v. Burke

¶36 The majority correctly acknowledges Justin Burke's statements and omissions may be used against him, yet it mistakes the State's proper use of his statements and omissions as impermissible comments on his "silence." Although I agree it was improper for the State to draw attention to Burke's apparent desire to consult an attorney before answering further questions, I do not believe the error is of constitutional magnitude that warrants review for the first time on appeal, let alone reversal of his conviction. The improper testimony was, at best, an indirect reference to Burke's exercise of his right to silence, and its impact was negligible when viewed in the context of the record as a whole, including the State's proper use of his statements and omissions.

¶37 Because Burke fails to demonstrate the challenged testimony amounts to manifest constitutional error, this court need not even review it for the first time on appeal.12 RAP 2.5(a)(3); State v. Kirkman,159 Wn.2d 918, 926, 155 P.3d 125 (2007). What is particularly troubling here is that *Page 224 Burke did not object at trial or move to strike on Fifth Amendment grounds any of the statements at issue. Although Burke raised the issue in a motion for a new trial, this was too late to afford the trial court an adequate opportunity to prevent or remedy the error. Counsel may not "`remain silent at trial as to claimed errors and later, if the verdict is adverse, urge trial objections for the first time in a motion for new trial or appeal.'" State v. Kendrick, 47 Wn. App. 620, 636,736 P.2d 1079 (1987) (quoting State v. Bebb, 44 Wn. App. 803, 806,723 P.2d 512 (1986)).

¶38 In the interest of judicial economy, ordinarily this court will not review an error raised for the first time on review. Kirkman,159 Wn.2d at 926. An exception exists for a "manifest error affecting a constitutional right." RAP 2.5(a)(3); Kirkman, 159 Wn.2d at 926. However, the exception is "`a narrow one.'" Kirkman, 159 Wn.2d at 934 (quoting State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988)). A manifest error is one which is "unmistakable, evident or indisputable."State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). In order to establish manifest constitutional error, a defendant must demonstrate actual prejudice. This deters trial counsel from deliberately not raising issues that are unlikely to impact the jury verdict but may provide a basis for a successful appeal. Id. at 343; see also Kirkman,159 Wn.2d at 934 (observing that a failure to object to improper testimony is often tactical). Thus, unless the claimed error had "`"practical and identifiable consequences in the trial,"'" it is not manifest. Kirkman, 159 Wn.2d at 935 (quoting State v. WWJ Corp.,138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (quoting Lynn,67 Wn. App. at 345)). In determining whether a claimed error is manifest, a reviewing court should view the error in the context of the record as a whole, rather than in isolation. Scott, 110 Wn.2d at 688. *Page 225

¶39 The State should not draw attention to a defendant's exercise of the constitutional right to silence.13 Here, the State elicited testimony that Burke's father intervened to end the interview — advising his son not to answer any more questions before speaking with an attorney — and that Burke apparently followed the advice. This was improper. However, not all improper references to a defendant's request for a lawyer, or choice to discontinue talking with the police, are errors of constitutional magnitude.

¶40 In State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996), this court distinguished between "comments" and "references" on silence. Both are improper, but only the former rise to the level of constitutional error. Improper references to silence are not reversible error absent prejudice and are not reviewable for the first time on appeal. State v. Romero, 113 Wn. App. 779, 790-91, 54 P.3d 1255 (2002). A "comment" occurs when the State uses a defendant's silence as substantive evidence of guilt or suggests the silence was an admission of guilt. State v. Gregory, 158 Wn.2d 759, 838, 147 P.3d 1201 (2006) (citingLewis, 130 Wn.2d at 707). A comment is more likely to be found when the State refers directly to the defendant's exercise of the right to silence. See, e.g., Romero, 113 Wn. App. at 785 ("`I read him hisMiranda[14] warnings, which he chose not to waive, would not talk to me.'"); State v. Curtis, 110 Wn. App. 6, 37 P.3d 1274 (2002) (officer testified he read defendant his Miranda rights and defendant refused to talk, stating he wanted an attorney). By contrast, indirect or fleeting references to a defendant's apparent exercise of the *Page 226 right to silence do not rise to the level of constitutional error.

¶41 For example, in State v. Sweet, 138 Wn.2d 466, 480, 980 P.2d 1223 (1999), a detective testified that when he asked the defendant to provide a written statement, the defendant "`said that he would do that after he had discussed the matter with his attorney.'" This court characterized the testimony as "at best `a mere reference to silence which is not a "comment" on the silence [and] is not reversible error absent a showing of prejudice.'" Id. at 481 (alteration in original) (quoting Lewis,130 Wn.2d at 706-07); see also Lewis, 130 Wn.2d at 706 (officer testified he told the defendant if he was innocent he should come and talk about it).

¶42 Here, the improper references were, at best, indirect comments on Burke's exercise of the right to silence. The officer's testimony made clear that it was Burke's father, not Burke, who abruptly brought the interview to a close, advising his son to consult an attorney before proceeding. A parent cannot invoke a constitutional right on behalf of an adult child. Further, testimony that Burke replied, "if that was possible [to end the interview]" showed Burke inquiring about, not exercising, his right to silence. 3 Verbatim Report of Proceedings (VRP) at 214. Indeed, after receiving assurance that he had the right to consult with an attorney, Burke did not remain silent but instead made a profane remark, exclaiming, "Edmonds Woodway [High School girls] were always trying to get [people] in[to] trouble." Id. The officer testified he did not ask Burke to elaborate because he understood Burke was choosing to end the interview at that point. This testimony is best characterized as an indirect reference to Burke's exercise of the right to silence.

¶43 The majority apparently infers the challenged testimony was an impermissible use of silence as substantive evidence of guilt because it occurred in the State's case-in-chief, rather than during rebuttal. However, the majority fails to recognize the State had a permissible purpose in *Page 227 eliciting testimony that Burke chose to end the interview. Testimony on a defendant's decision to end an interview with the police is not necessarily an improper reference to the exercise of the right to silence. When a defendant makes an admissible statement, the witness who relates that statement may indicate the defendant chose to stop. UnitedStates v. Williams, 181 U.S. App. D.C. 188, 556 F.2d 65 (1977). Otherwise, the jury may infer the police cut the interview short before the defendant had a full opportunity to give his account. This is particularly true where, as here, the defendant has essentially made a full confession to the police before electing not to speak further. Thus, the State was entitled to show the police did not unfairly cut off Burke's opportunity to elaborate on his admissions that he had sex with someone he knew was a high school student, even though he did not know her age.

¶44 Although it was not necessarily improper for the State to elicit testimony that Burke chose to stop talking to the police, arguably it was improper for the State to elicit testimony that Burke asked "if that was possible," referring to his father's advice that he consult with an attorney before answering more questions. Testimony about a defendant's desire or request for a lawyer is impermissible. Williams, 556 F.2d at 67. The defendant's choice to give a partial statement does not justify the State drawing attention to the defendant's subsequent decision to seek assistance of counsel before proceeding. Thus, a prosecutor should refrain from eliciting testimony that a defendant asked whether he could consult with an attorney in order to avoid unfair inferences or prejudice.

¶45 This is a situation, however, where a motion in limine, or a timely objection or motion to strike, could have easily prevented or remedied the error. See State v. Bullock, 71 Wn.2d 886, 893, 431 P.2d 195 (1967) (refusing to review whether State impermissibly commented on defendant's postarrest silence for failure to lodge a timely objection at trial); State v. Hamilton, 47 Wn. App. 15, 18-19, 733 P.2d 580 (1987) (defendant waived objection to prosecutor's *Page 228 improper remarks where a sustained objection and curative instruction could have cured unfair prejudice). Because the State had a permissible purpose in eliciting that Burke, not the police, chose to end the interview, the improper testimony was not egregious and should be considered waived. "Appellate courts will not approve a party's failure to object at trial that could identify error which the trial court might correct (through striking the testimony and/or curative jury instruction)." Kirkman, 159 Wn.2d at 935; see State v. Belgarde,110 Wn.2d 504, 507, 755 P.2d 174 (1988) (failure to object excusable only when no curative instruction would remedy the error).

¶46 In Kirkman, 159 Wn.2d at 930, we held improper opinion testimony that allegedly violated the defendant's Sixth Amendment right to a jury trial does not rise to the level of manifest constitutional error unless the witness expressly vouches for a witness's credibility. Indirect testimony on the witness's credibility, although arguably improper, is not "manifest error" and does not warrant review for the first time on appeal. See also State v. King, 131 Wn. App. 789, 130 P.3d 376 (2006) (witness's indirect references to a victim's credibility not manifest constitutional error), review denied, 160 Wn.2d 1019 (2007); State v.Madison, 53 Wn. App. 754, 770 P.2d 662 (1989) (improper references to a victim's credibility is not reviewable as manifest constitutional error unless they amount to express, not indirect, opinion testimony), reviewdenied, 113 Wn.2d 1002 (1989). Agreeing with the Court of Appeals, Division One's analysis of the issue, we stated, "`Manifest error' requires a nearly explicit statement by the witness that the witness believed the accusing victim." Kirkman, 159 Wn.2d at 936. We reasoned that allowing review of only explicit opinion testimony is more consistent with our holding that the manifest error exception is narrow.

¶47 We should adopt a similar approach in deciding whether alleged comments on prearrest silence are reviewable for the first time on appeal. Kirkman, 159 Wn.2d 918. When the State has a legitimate purpose in eliciting testimony *Page 229 concerning a defendant's choice to end a police interview, a reviewing court should be particularly reluctant to characterize ambiguous references to the defendant's silence as manifest constitutional error.Cf. State v. Holmes, 122 Wn. App. 438, 93 P.3d 212 (2004) (State had no legitimate reason to elicit testimony that defendant failed to proclaim his innocence upon arrest).

¶48 Even assuming the testimony was improper, Burke has failed to show he was prejudiced by the error. Williams is instructive. InWilliams, the defendant testified he fled from plainclothes detectives at the scene of a bank robbery because he did not know they were police officers. The State impeached his testimony by showing he gave a different version of events to the arresting officer. The arresting officer testified, "`He then stated that he wanted to talk to a lawyer before he answered any more questions, at which time I concluded my interview with him.'" Williams, 556 F.2d at 66. The appellate court affirmed his conviction while acknowledging the reference to an attorney was improper. Viewing the record as a whole, the court stated, "What was damaging was not any testimony of defendant's silence, but the testimony of what defendant said before he decided to say no more." Id.

¶49 So too with Burke. Burke freely admitted he had sexual intercourse with a girl he knew to be in high school, even though he did not know how old she was. Although Burke later testified she told him she was 16, he gave inconsistent and contradictory explanations that simply did not add up. It was Burke's own words and omissions that proved so damaging at trial, not the State's indirect comment on his apparent desire to consult an attorney. The majority fails to recognize this because it does not acknowledge the devastating impact the State's proper use of Burke's statements and omissions had on his credibility.

¶50 Not all incriminating inferences drawn from a defendant's nonstatements amount to the impermissible use of silence as substantive evidence of guilt. For example, in Gregory, 158 Wn.2d at 838-39, a detective testified that he *Page 230 left a business card at the defendant's home, with a message to contact him, but the defendant did not do so for three days. When the defendant finally spoke with police, he gave an alibi as to his whereabouts at the time of the crime. In closing argument, the prosecutor asked the jury to infer the defendant's delay in contacting the police gave him ample time to fabricate his alibi. This court held the testimony and closing argument did not constitute an impermissible comment on the defendant's constitutional right to silence. Id. at 840. This court stated the prosecutor did not unfairly use the defendant's delay in contacting police to suggest he was avoiding the police because he was guilty. Rather, the prosecutor used it for the permissible purpose of impeaching his alibi defense by suggesting the delay gave him ample time to make his story consistent with that of other witnesses.

¶51 Similarly, here, the prosecutor did not unfairly use Burke's choice to end the police interview to suggest his silence was an admission of guilt. Rather, the prosecutor used it for the permissible purpose of showing that Burke had been free to tell the officer's whatever he wanted, yet elected not to tell them what he later recognized was the "crux" of the matter, that J.S. said she was 16. 4 VRP at 62. Instead, he told them he had sex with her, he knew she was a high school student, and he did not learn how old she was until later.

¶52 When a defendant does not remain silent and instead speaks with the police, the State may comment on what he does not say. State v.Clark, 143 Wn.2d 731, 765, 24 P.3d 1006 (citing State v. Young,89 Wn.2d 613, 621, 574 P.2d 1171 (1978)), cert. denied, 534 U.S. 1000 (2001). Such omissions do not amount to constitutionally protected "silence," and the State may use them as substantive evidence of guilt.State v. McFarland, 73 Wn. App. 57, 867 P.2d 660 (1994) (defendant's failure to mention he had contact with shotgun until after he was confronted with incriminating evidence held admissible when he had freely spoken with the police about the alleged crime); State v. Bradfield, *Page 231 29 Wn. App. 679, 685, 630 P.2d 494 (nonstatements of defendant admissible when defendant voluntarily speaks to the police), reviewdenied, 96 Wn.2d 1018 (1981). "[T]he State may question a defendant's failure to incorporate the events related at trial into the statement given police or it may challenge inconsistent assertions." Belgarde,110 Wn.2d at 511 (citing Anderson v. Charles, 447 U.S. 404,100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980); State v. Seeley,43 Wn. App. 711, 714, 719 P.2d 168 (1986)). Such inconsistencies are not "insolubly ambiguous" but rather "`strongly suggests a fabricated defense and the silence properly impeaches the later defense.'" Belgarde,110 Wn.2d at 511-12 (quoting State v. Cosden, 18 Wn. App. 213, 221,568 P.2d 802 (1977)). "Each of two inconsistent descriptions of events may be said to involve `silence' insofar as it omits facts included in the other version. But Doyle [v. Ohio, 426 U.S. 610, 96 S. Ct. 2240,49 L. Ed. 2d 91 (1976)] does not require any such formalistic understanding of `silence. . . .'" Anderson, 447 U.S. at 409.

¶53 This court's decision in Young, 89 Wn.2d 613, is instructive here. In that case the defendant was informed he was under arrest and was read his Miranda rights before he was transported to the federal courthouse in Yakima. The defendant stated he understood his rights. During the two hour ride to Yakima, although the defendant was silent much of the time, he did make several damaging statements. At trial the defendant objected to use of the statements, claiming that such use violated his right to remain silent. Id. at 619. This court disagreed. We observed that by voluntarily making statements, not in response to interrogation, the defendant had chosen not to remain silent and that the prosecutor was entitled to argue the defendant's failure to disclaim responsibility based on his silence on the point. Id. at 621.

¶54 Similarly, in Hamilton, 47 Wn. App. 15, the Court of Appeals rejected a defendant's claim that the State violated his constitutional right to silence by commenting on his failure to provide exculpatory information during a pre-arrest *Page 232 telephone conversation with police. The defendant broke into his ex-girlfriend's home, shot a man through a closed bathroom door, and then fled. He later called the residence and spoke with a police officer for about 15 minutes. Id. at 16. At trial the defendant testified he believed the victim was an intruding rapist. On cross-examination the prosecutor asked why he had not mentioned this information to the police officer during their telephone conversation. Id. at 19. The defendant argued that in light of Lewis, the Doyle rule applies even in the prearrest context, barring the police from using silence either as substantive evidence or as impeachment evidence. The Court of Appeals rejected the argument. "`[T]he Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility.'" Hamilton,47 Wn. App. at 20 (quoting Jenkins v. Anderson, 447 U.S. 231, 238,100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980)).

¶55 As the majority states, this court has joined other courts "in being skeptical of the probative value of impeachment based on silence." Majority at 218 (citing Easter, 130 Wn.2d at 235 n. 5). Because a defendant may have legitimate reasons to remain silent, it may be "`impossible to conclude that a failure to speak is more consistent with guilt than with innocence,'" rendering such evidence irrelevant and, thus, inadmissible under the rules of evidence. Majority at 219 (quotingPeople v. De George, 73 N.Y.2d 614, 618-19, 541 N.E.2d 11, 543 N.Y.S.2d 11 (1989)). However, the probative value of silence depends on the particular facts and circumstances. Necessarily each case must be decided on its own facts. When a defendant elects to speak rather than remain silent, the things he "does not say" gain probative value viewed in the context of his affirmative statements, whether made to police investigators or at trial.

¶56 Burke's failure to relate that J.S. misled him about her age was not constitutionally protected "silence"; it was an omission that has substantial probative value viewed in the context of his willingness to admit having sex with her, his admission that he did not know her age at the time, and *Page 233 his outburst of indignation upon learning he would be held criminally liable for his conduct ("Edmonds Woodway [girls are] always trying to get [people] in [to] trouble"). Burke's testimony that he carefully inquired about J.S.'s age before having sex with her to ensure she was old enough to consent increased the probative value of his omission.

¶57 Under the facts presented, it is not impossible to conclude Burke's "silence" was more consistent with guilt than with innocence. Rather, his omissions raise a reasonable inference he was untruthful when he testified that J.S. said she was above the age of consent. 4 VRP at 63. The simple fact is that Burke was not "silent," but chose to speak. Once he freely spoke to police, the State was free to comment on what he did and did not say.

¶58 The majority states, "[a]n accused's failure to disclose every detail of an event when first contacted by law enforcement officials is not per se an inconsistency." Majority at 219.1 agree. However, in this case, Burke told officers he did not know how old J.S. was when he had sex with her. At trial, he said he deliberately asked her age because he knew it was wrong to have sex with a 15 year old. The majority notes, "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." Id. at 219. Burke was entitled to raise these arguments before the jury, which he did. The State was entitled to argue Burke would have mentioned J.S.'s alleged misrepresentation to the police, if it were true, rather than saying he didn't know her age. It was for the jury to decide whether Burke's testimony was true.

¶59 The State presented other powerful impeachment evidence that undermined Burke's credibility. The police were not the only ones to whom Burke omitted mention of J.S.'s alleged misrepresentation. He also failed to mention it to J.S.'s older sister, Jaime, or to his friend, Chelsea Pierson. Burke and Jaime had been good friends, who "hung out all the time." 3 VRP at 155. Jaime testified that when she confronted Burke and got him to admit he had sex *Page 234 with J.S., she became furious with him, repeatedly shouting, "I can't believe you did this, she is only 15." Id. at 154-55. She also threatened to "send him to jail." Id. at 132. Yet Burke did not tell her he believed J.S. was older than 15. The State argued that a reasonable person would have responded by saying he had been misled into believing J.S. was 16, if that were in fact true. This was entirely appropriate. See ER 801(d)(2)(ii); State v. Holland, 30 Wn. App. 366, 384, 635 P.2d 142 (1981) (defendant's failure to claim a shooting was accidental at the time he admitted involvement to the victim's family was not an impermissible comment on silence), aff'd on other grounds, 98 Wn.2d 507,656 P.2d 1056 (1983).

¶60 Chelsea Pierson is Burke's friend. She testified that she spoke with him many times "about this incident," including "about every time we hung out." 3 VRP at 193. When the prosecutor asked her to relate what Burke said, she replied, "that he did have sex with her and that he didn't know how young she was and that [he] thought she wanted it too, basically." Id. She said he related many specific details about the encounter, including that J.S. "even helped him" take off her pants, that "he used a condom." Id. at 195. However, he did not tell her that J.S. said she was 16 or 17.

¶61 At trial, Burke testified that before he had sex with J.S., he asked her how old she was, and she said she was nearly 17 years old and about to begin her senior year in high school. Burke also testified he first learned she was 15 years old when Jaime told him so during their telephone conversation.

¶62 On cross-examination, the prosecutor elicited that Burke asked J.S. her age because he understood the age of consent was 16, and he wanted to be sure she was old enough to have sex with him. Burke had no explanation for why he did not previously mention, either to Jaime, or to Chelsea, or to the police, that J.S. said she was nearly 17. Yet he agreed this was "the most important information" concerning the propriety of his sexual relations with her. *Page 235 4 VRP at 63. He acknowledged it was something one would "naturally want to tell the police." Id. at 61.

¶63 As the prosecutor stated in closing argument, Burke's defense was irreconcilably inconsistent with his own admissions. He attempted to explain his failure to tell police about J.S.'s alleged misrepresentation by stating he did not recognize the importance of that fact. Yet he testified he asked J.S. about her age to assure himself she was old enough to consent to sex.

¶64 The prosecutor suggested that, in view of these facts, it was highly unlikely Burke was truthful since he would have told the officers at the time he freely admitted having sex with her, instead of simply protesting that girls at her high school were "always trying to get [people] in [to] trouble." This was a legitimate use of Burke's omissions, not an impermissible use of his silence to infer guilt.

Conclusion ¶65 The State improperly elicited testimony that Burke asked if he could consult with an attorney before answering any more questions. However, the error was, at most, an indirect reference to Burke's exercise of his right to silence and does not warrant review for the first time on appeal. Moreover, when viewed in context, the improper testimony was harmless. The majority incorrectly assesses its prejudicial impact by mischaracterizing the State's legitimate use of Burke's admissions and omissions as improper commentary on his silence. I would affirm the Court of Appeals.

ALEXANDER, C.J.; J.M. JOHNSON, J.; and BRIDGE, J. PRO TEM., concur with MADSEN, J.

12 In the majority's view, RAP 2.5 is inapplicable because the State did not raise the issue. But this court has a duty to determine the appropriate scope of appellate review even when the parties have not raised the issue. Barnett v. Hicks, 119 Wn.2d 151, 154, 829 P.2d 1087 (1992).
13 Although the improper testimony referred not to silence but to Burke's equivocal request for an attorney, it is properly analyzed as an alleged comment on his prearrest silence. See Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (analyzing prosecutor's use of "talk to my lawyer" as a comment on defendant's prearrest silence); see also Wainwright v.Greenfield, 474 U.S. 284, 295 n. 13, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986) ("silence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted"). Burke's statement is best understood as indicating a desire to remain silent until he consults with an attorney.
14 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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