Opinion
40957-7-II
02-07-2012
STATE OF WASHINGTON, Plaintiff/Respondent, v. INNA VYACHESLAVOVNA BOCHKAREVA, Defendant/Appellant.
UNPUBLISHED OPINION
Worswick, A.C.J.
Inna V. Bochkareva appeals her first degree theft conviction, claiming the State impermissibly used her silence as substantive evidence of guilt and that she was deprived of effective assistance of counsel for counsel's failure to object to the admission of this evidence. We agree with her first contention and thus reverse and remand for a new trial.
FACTS
Viktor and Liliya Gromysh rented their Vancouver, Washington home to Bochkareva in July 2008. At that time, Viktor had about 4, 200 square feet of wood flooring stored in the garage. Bochkareva agreed that Viktor could continue to store the wood flooring there.
Viktor installed and finished wood flooring through his business Vikon, LLC. Viktor's supplier testified that the wood flooring was worth between $4.00 and $6.00 a square foot.
Bochkareva moved out of the house by October 1, 2009. Viktor and Liliya discovered that the wood flooring was missing when they inspected the house that day. Viktor then called Bochkareva and asked her about the wood. Her response, he later testified, was that a friend of hers had taken it and that he, Viktor, could go to hell. Viktor then called the police and Officer Miranda Ross of the Vancouver Police Department came to the home. Viktor explained:
We use the Gromyshes' first names for ease of reading; we intend no disrespect.
A. Police officer arrived.
Q. And, what happened?
A. Well, I try to call Inna in presence of police officers. She hung up a few times, doesn't want to speak.
Q. Okay.
A. Then, police officer try to call to her a few times. She hang up. Simply bad behavior. Police officer says, "I'm Police Officer named Miranda-", I don't remember. Hang up.
Q. Okay.
A. Police officer try to call her the second time. Same story. I don't know maybe it was continued like three or four times. I was calling to Inna in the presence of police officer like a few times. Police officers call her. But, just rude behavior.
Q. Okay. So, Inna was not cooperating with the police officer?
A. Not.
Q. I'm sorry?
A. Not of course.Report of Proceedings (RP) at 58-59. Five minutes after Officer Ross left, Bochkareva arrived. Viktor testified that he spoke with Bochkareva and she agreed to return the wood flooring in exchange for Viktor getting the police to stop pursuing criminal charges against her. To memorialize this agreement, he had Bochkareva write in their native Russian language the following:
I, Inna Bochkareva, take two weeks to clean house and return hardwood flooring in amount 4000 square feet plus/minus approximately from 10/01/2009 to 10/15/2009.RP at 67-68. Both signed the agreement. Two weeks later, the police arrested Bochkareva when Viktor had her bring the house key to him.
Officer Ross testified about her preliminary investigation on October 1, 2009, when she met with Viktor and Liliya. After taking her report, she asked Viktor to call Bochkareva:
Q. Okay.
A. I asked him to-or, he had told-I asked him to place a call to the defendant.
Q. Okay.
A. And, I got on the phone and spoke to her, identified myself as Officer Ross of Vancouver Police and said I needed to know details about the missing wood in the garage.
Q. And?
A. She hung up.RP at 223. Officer Ross then asked Viktor to call Bochkareva back but she did not answer her telephone. She then asked Liliya to call Bochkareva. Bochkareva answered but spoke to Liliya in Russian so Officer Ross did not understand the conversation. Officer Ross then called Bochkareva again but Bochkareva did not answer and Officer Ross left a message asking her to call because she needed a statement from her. The State then asked:
Q. Did you ever receive a call-a phone call back from that number?
A. No.
Q. Okay. All right. So, your attempt to contact the suspect, if you will, was unsuccessful?
A. Correct.RP at 228. Officer Ross then forwarded to Officer Ilia Botvinnik her report and some additional information Viktor had provided in Russian. Officer Botvinnik, whose native language is Russian, responded to a call from Viktor on October 8, 2009, contacted him at the rental home, and collected the note that Viktor had Bochkareva write. Officer Botvinnik responded again on October 14, 2009, when Viktor called him and told him that Bochkareva would be coming to the rental house to return the keys.
Bochkareva did arrive and when Officer Botvinnik asked her about the note, Bochkareva acknowledged that she had written and signed it. Though she responded that she had done so because she was scared of Viktor. Botvinnik then arrested Bochkareva.
Bochkareva testified that when she first met with Viktor and Liliya on October 1, 2009, he accused her of stealing the wood flooring and threatened to have her deported and put in jail, leaving her children alone. She said that Viktor dictated what she should write and that he would have her arrest warrant quashed if she did what he asked. Bochkareva denied taking the wood flooring, did not know who took it, and denied telling Viktor that she gave it to a friend. She testified that when she initially talked with Officer Ross on October 1, 2009, she told Officer Ross that she could be there in ten or fifteen minutes but that Officer Ross said she would be gone by that time.
During closing argument, the State disputed this:
This is a pretty serious crime. It's a felony. Theft in the first degree is a felony. Officer Ross testified that she was unable to talk to the defendant, the defendant hung up on her. Not once but at least twice. She tried from Viktor's cell phone twice and she had Liliya call twice. All four times not able to reach the defendant. Now, you think that Officer Ross, a Vancouver police officer responding to a call of a theft for this amount of property, if the alleged suspect told her, "Now, I'm going to be there in ten, fifteen minutes. I'm willing to talk to you, " you think Officer Ross would say, "Nah. I'm not going to be here when you get here", that she would leave?RP at 367.
The jury found Bochkareva guilty of first degree theft. The sentencing court imposed 20 days of confinement and $30,000 in restitution. Bochkareva appeals.
In violation of RCW 9A.56.020(1)(a) and RCW 9A.56.030(1)(a).
DISCUSSION
I. Comment on Silence
Bochkareva contends that the State violated her rights under the Fifth Amendment to the United States Constitution and article I, section 9 of the state constitution by eliciting evidence that she refused to speak with Officer Ross. Bochkareva did not raise this issue below and thus before we can consider it, we must find a manifest constitutional error.
A. Manifest Constitutional Error
RAP 2.5(a)(3) provides, "The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court . . . (3) manifest error affecting a constitutional right." State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). As our Supreme Court recently noted:
In order to benefit from this exception, "the appellant must identify a constitutional error and show how the alleged error actually affected the [appellant]'s rights at trial." A constitutional error is manifest if the appellant can show actual prejudice, i.e., there must be a "plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case." If an error of constitutional magnitude is manifest, it may nevertheless be harmless.State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011) (alterations in original) (citations omitted) (internal quotation marks omitted) (quoting State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). Thus, an appellant shows actual prejudice is manifest entitling it to review by showing that the asserted error had "practical and identifiable consequences" at trial. State v. Bertrand, No. 40403-6, 2011 WL 6097718, slip op. at 6 n.8, (Wash.Ct.App. Dec. 8, 2011) (quoting Gordon, 172 Wn.2d at 676).
Bochkareva notes that both Viktor and Officer Ross testified about her "refusal" to talk with the police and the State reiterated that testimony in closing argument. She argues that there was no reason for the State to elicit this evidence except to encourage the jury to conclude that she would not have refused unless she was guilty. Thus, she argues, because this testimony improperly commented on her constitutional right to silence, it is manifest.
We agree that there is a manifest constitutional error here. When a defendant testifies at trial, due process under the Fourteenth Amendment prohibits impeachment based on a defendant's silence after he receives Miranda warnings; nevertheless, the State may constitutionally use his pre-arrest, pre-warning silence to impeach him. State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1 (2008). The State may not, however, use a defendant's pre-arrest silence as substantive evidence of guilt. State v. Easter, 130 Wn.2d 228, 237, 922 P.2d 1285 (1996).
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
In two companion cases, Easter and State v. Lewis, 130 Wn.2d 700, 927 P.2d 235 (1996), our Supreme Court addressed the use of pre-arrest silence. In Easter, Easter was driving a car that collided with a taxi cab. 130 Wn.2d at 231. When the police officer arrived at the scene, he found Easter in a bathroom of a gas station at the intersection. 130 Wn.2d 232. He testified that Easter "totally ignored" him when he asked what had happened. 130 Wn.2d 232. He also testified that when he continued to ask Easter questions, Easter looked down, "once again ignoring me, ignoring my questions." 130 Wn.2d 232. The officer then testified that after he told Easter that he could either submit to a voluntary blood test at a hospital or be arrested, Easter's attitude changed and he finally talked and stopped being evasive. 130 Wn.2d 232-33. The officer testified that Easter was a "smart drunk, " meaning that he "was evasive, wouldn't talk to me, wouldn't look at me, wouldn't get close enough for me to get good observations of his breath and eyes, I felt that he was trying to hide or cloak." 130 Wn.2d 233. The prosecution continued the assault on Easter's right of silence by commenting repeatedly in closing argument that this case was about a "smart drunk." 130 Wn.2d 234.
In contrast with Easter, in Lewis, 130 Wn.2d at 705-06, a companion case to Easter, the court found that no improper comment on a defendant's silence took place:
A police witness may not comment on the silence of the defendant so as to infer guilt from a refusal to answer questions. However, we conclude that is not what occurred in this case. The detective did not say that Lewis refused to talk to him, nor did he reveal the fact that Lewis failed to keep appointments. The officer did not make any statement to the jury that Lewis's silence was any proof of guilt. The only thing the detective told the jury is that the defendant told him that "those women were just at my apartment and nothing happened, and they were both just cokeheads, " and that "[Lewis] was trying to help them is what he said." Report of Proceedings at 163. This is consistent with Lewis's later testimony. Unlike the officer's testimony in the Easter case, which included the officer's opinion that Mr. Easter was hiding his guilt with his silence, the officer in this case made no comment on Lewis's silence. The only statement he made was that Lewis had told him he was innocent.(Footnotes omitted.).
The present case is more like Easter than Lewis. Not only was it improper for the State to elicit testimony that Bochkareva declined to speak with Officer Ross, it further elicited testimony from Viktor that she was uncooperative and rude. It also elicited testimony from Officer Ross that Bochkareva never called her or came to speak with her about the wooden flooring in response to Officer Ross's request that she do so. Bochkareva had no obligation to speak with Officer Ross and no obligation to call her back. Because, as we discuss in greater detail below, this improper testimony directly undermined Bochkareva's credibility and her credibility was central to the jury's decision-making, she has shown practical and identifiable consequences and thus Bochkareva may properly raise this error on appeal.
B. Harmless Error
We next ask whether the State has shown that this constitutional error was harmless beyond a reasonable doubt. Gordon, 172 Wn.2d at 676 (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). The State's case rested primarily on whether it found Viktor's testimony credible. Viktor claimed that Bochkareva said that a friend of hers took the wood flooring. And it was her word against Viktor's as to whether he coerced the note she had written and signed at his direction.
Further, the evidence that Bochkareva committed the charged offense was not overwhelming. To the contrary, it consisted primarily of Viktor's statements that Bochkareva told him that a friend of hers took the wood flooring. Bochkareva adamantly denied that she said this. Viktor also obtained a written note from Bochkareva in which she wrote that she would return the wood flooring. Bochkareva claims that Viktor coerced this note from her by threatening to have her arrested, deported, and separated from her children. In other words, the results of this trial depended on how the jury balanced the credibility of these two people. No reasonable juror could put aside that Bochkareva refused to cooperate with the police, hung up the telephone when the police called, and failed to go to the police station to give a statement. The inference introduced by the State's elicitation of this evidence was that Bochkareva's actions suggested a guilty conscience. This is particularly true in light of the lack of evidence the State introduced in support of its case.
The State did not produce a single witness who saw the wooden flooring being moved or who saw large trucks at the house. The State did not present any testimony about where the wood flooring went other than Viktor saying he never recovered it, Viktor's claim that Bochkareva said that a friend of hers took it, and Bochkareva testifying that she had no idea who took the wood flooring or where it went.
Further, nothing in the record before us suggests that the State elicited this testimony as anticipatory impeachment. See Burke, 163 Wn.2d at 218 n.8 (anticipatory impeachment may be admissible with a proper foundation and with the court's permission). As our Supreme Court noted, "'The cases that have permitted testimony about the defendant's silence have done so only for the limited purpose of impeachment after the defendant has taken the stand, and not as substantive evidence of guilt when the defendant has not testified.'" Burke, 163 Wn.2d at 218 (quoting State v. Easter, 130 Wn.2d at 237).
C. Comment on Silence
The State violated Bochkareva's constitutional right of silence. And despite its claims to the contrary, the State has not shown these errors to be harmless. Bochkareva is entitled to a new trial.
II. Effective Assistance Of Counsel
Bochkareva contends that defense counsel's failure to object when the State introduced testimony about her pre-arrest silence violated her constitutional right to effective assistance of counsel. In light of our holding on the violation of Bochkareva's right to silence, we need not address this issue.
We reverse and remand for a new trial.
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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Van Deren, J. Johanson, J.