Opinion
No. 56631-8-I.
November 6, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00939-4, James H. Allendoerfer, J., entered June 23, 2005.
Counsel for Appellant(s), Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3647.
Counsel for Respondent(s), Lisa Danette Paul, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Affirmed by unpublished per curiam opinion.
Mark Harris was convicted of second degree possession of stolen property and attempting to elude a pursuing police vehicle. He challenges the State's alleged improper comments on his right to silence in testimony and closing argument. The testimony in question was not a comment on his right to silence, so Harris can show no manifest constitutional error justifying review absent objections which were not made below. The closing argument was a comment on Harris's flight and his prearrest silence, and was used for impeachment purposes. The court's curative instruction remedied any potential prejudice. We affirm.
I.
On March 25, 2005, Steve Berry's car was stolen. On March 28 at 12:30 a.m., Snohomish County Sheriff's Officer Matthew Calnon spotted Mark Harris driving the car in Everett. Calnon ran the license plate, discovered that the car was stolen, and followed it. Harris turned right, cut through a parking lot, returned to the road, and eventually stopped at a traffic signal. Calnon turned on his emergency lights and siren when backup police patrols arrived. Harris continued to drive, with Calnon in low-speed pursuit, for a few more blocks. Harris turned into the parking lot of an auto dealership. Although the lot was narrow and packed with cars, Harris accelerated through the parking lot, jumped two curbs, ran over a fence, and continued driving.
Harris drove another 100 to 200 feet; Calnon caught up to him. Harris stopped the car, got out, ran toward a chain link fence topped with barbed wire, and scaled it. Calnon ran to the fence as Harris dropped down on the other side. For a moment the two men were face to face; then Harris ran toward an apartment complex. Calnon waited for a canine unit to arrive, and searched for Harris in the vicinity of the apartments.
Thirty minutes later, the canine unit found Harris in a tree. Harris was charged with second degree possession of stolen property and attempting to elude a pursuing police vehicle.
At trial, Harris testified that what appeared to be car theft and eluding was actually just a series of unfortunate events. Harris said he had borrowed the car from a friend whose last name he did not know. Harris thought nothing of the fact that there were no keys, nor did he think it odd that the steering column had been disassembled so the car could be started with a screwdriver. He claimed that the brakes were inoperable, and that he drove the entire route without braking. Harris also insisted that when he pulled into the car dealership, he was trying to stop for Officer Calnon, but the accelerator suddenly and inexplicably depressed. Finally, Harris said that he ran from the police after the car stopped because he was afraid of being beaten.
He claimed that Officer Calnon was mistaken in his recollection that Harris had stopped at a red light, and slowed down several times during the pursuit.
Harris was convicted on both counts. He appeals, arguing that testimony and argument regarding his silence was used as substantive evidence of his guilt in contravention of the Fifth Amendment.
II.
We review an alleged constitutional violation de novo. Manifest errors affecting a constitutional right may be reviewed on appeal even if they are not first raised in the trial court. A manifest error is one which is "unmistakable, evident, or indisputable."
State v. Stanley, 120 Wn. App. 312, 314, 85 P.3d 395 (2004).
RAP 2.5(a)(3).
State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).
Testimony on Silence
Neither pre nor postarrest silence may be used as substantive evidence of guilt. A police witness may testify that a defendant did not say anything, but may not comment on that silence so as to infer guilt. "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." Silence contemporaneous with arrest is classified as postarrest.
State v. Easter, 130 Wn.2d 228, 237-38, 922 P.2d 1285 (1996); State v. Davis, 38 Wn. App. 600, 605, 686 P.2d 1143 (1984).
State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996).
Lewis, 130 Wn.2d 700 at 707.
See Easter, 130 Wn.2d at 236.
Harris challenges two statements made by two different officers. The statements both refer to Harris's silence as he climbed down the tree. The first came on direct examination of Officer Calnon:
Q. Okay. And where was he located?
A. In a tree.
Q. Did you have him come down from that tree?
A. Yes.
. . . .
Q. And was it the same individual that you saw driving —
A. Yes.
Q. — the Saturn? Did he make any unusual statements that you're aware of?
A. I was — he made no statements to me. I was told he made some —
MR. MACMANAMA: Objection, hearsay.
THE COURT: Sustained.
Q. So you contacted him, and can you describe his appearance'
Report of Proceedings (RP) (June 13, 2005) at 32.
The other exchange at issue was with Sgt. Daniel Johnson:
Q. How far up in the tree was he?
A. I'm going to say between ten to 12 feet.
Q. And did you have to tell him to come down, or how did that happen?
. . . .
Q. He started down, got part way down, and then said something like, I can't get down, I'm stuck.
. . . .
Q. And was he taken into custody at that point in time?
A. Yes, he was. He was placed in handcuffs without further incident.
Q. And did he make any other statements to you?
A. Not to me, no.
Q. Okay. Any other statements to anybody else when he was coming down the tree?
A. Not that I recall.
A. Okay.
RP (June 13, 2005) at 41-42.
Harris made no objection regarding the right to silence. The State did not refer to this testimony again.
The State's closing argument focused on Harris's behavior after he exited the car and ran, not his behavior after he climbed down from the tree. The testimony of the officers, that Harris made no statements after being discovered in the tree, was never mentioned in closing.
The challenged testimony was not used as substantive evidence of guilt. Although Officers Calnon and Johnson both observed that Harris made no statements after he climbed out of the tree, there was no commentary, judgment, inference, or suggestion that this was evidence of his guilt. There was no testimony or argument that Harris failed to make statements in the face of police questioning. Admission of this testimony was neither an unmistakable nor an indisputable error. Because there was no manifest constitutional error in admitting these statements, Harris's failure to raise a proper objection below precludes our consideration of this argument.
Closing Argument on Silence
Harris also challenges two comments made by the State during closing arguments. Contrary to Harris's suggestion, the arguments do not refer to the officers' testimony about Harris's silence as he descended from the tree. They refer to his flight after he exited the car, thirty minutes before he was apprehended in the tree. The challenged arguments are:
Then, of course, after he is able to bring the vehicle to a stop, what does he do? He doesn't get out of the vehicle and explain, hey, deputy, the brakes failed, accelerator stuck, you know, what am I supposed to do? I'll have a mechanic look at it, he'll tell you the same thing, he'll tell me the same thing. Honest mistake. No. He runs. He not only runs, he climbs a fence, going over barbed wire, flips over onto the other side, jumps over the other side, he runs to a tree and climbs up the tree. That is the conduct of a person who's guilty, who not only knows he's driving a stolen vehicle, but who was attempting to elude the police.
RP (June 14, 2005) at 89-90.
. . . .
And then, think also about his conduct, because sometimes actions speak louder than words. He fled from the police. He fled from them. He didn't — you know, now, three months later, he has an explanation for it, but not then, not then he didn't have an explanation.
RP (June 14, 2005) at 117.
There was no objection made to the first comment, but after the second, Harris objected. The court gave an immediate curative instruction, clarifying that Harris was not required to explain his actions to the police, and that the State should not have commented on his exercise of his constitutional rights. The jury also received the standard written instruction that closing arguments are not evidence.
The State may introduce evidence of flight to show consciousness of guilt. The State's closing argument emphasized Harris's actions in fleeing as evidence of his guilt. Harris did not object to the evidence of his flight. In fact, he offered his own explanation: that he fled because he was afraid of the police. The jury was entitled to consider whether his "departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution."
State v. Hebert, 33 Wn. App. 512, 515, 656 P.2d 1106 (1982).
Hebert, 33 Wn. App. at 515.
However, in pointing out that Harris fled, the State also commented on the fact that he did not stay and explain. The reference was to prearrest silence, because Harris was not under arrest or in custody. However, Harris testified. He explained why he ran after he stopped the car. Prearrest silence may be used to impeach a defendant's credibility at trial: "'the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility.'" The State's argument was an attempt to impeach Harris' exculpatory testimony, not part of its case in chief. It was proper.
See Easter, 130 Wn.2d at 231-235 (defendant's silence during police questioning, when defendant under suspicion but not in custody until two days later characterized as prearrest).
State v. Hamilton, 47 Wn. App. 15, 20, 733 P.2d 580 (1987) (quoting Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980)).
Finally, any potential prejudice was remedied by the court's curative instruction. The jury is presumed to follow the court's instructions, and a new trial is warranted only when "'nothing the trial court could have said or done would have remedied the harm done to the defendant.'"
State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982).
State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979) (quoting State v. Swenson, 62 Wn.2d 259, 280, 382 P.2d 614 (1963)).
AFFIRMED.
ELLINGTON and GROSSE, JJ., concur.