Opinion
No. 37149-9-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-00953-5, Richard D. Hicks, J., entered December 20, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Houghton, J.
UNPUBLISHED OPINION
A jury found Antonio Padilla-Tapia guilty of second degree murder while armed with a deadly weapon, contrary to RCW 9A.32.050(1)(a), RCW 9.94A.602, and RCW 9.94A.533(4). Padilla-Tapia appeals his conviction, arguing that the trial court erred by allowing the State to question him in a manner that improperly commented on his constitutional right to silence. Padilla-Tapia also argues that his defense counsel was ineffective for failing to object to this line of questioning. Because the question at issue did not improperly comment on Padilla-Tapia's right to silence, we affirm.
FACTS
In the early morning hours of May 27, 2007, Salome Hernandez Chavelas (Salome) was stabbed to death at the Prairie Pines trailer park in Centralia, Washington. Padilla-Tapia had immigrated to the United States approximately six months earlier and had lived at Prairie Pines, in trailer 4-A, with Lucas Navarette Chavelas (Lucas); Lucas's brother, Isidro Navarette Chavelas (Isidro); and Agripino Gatica Ortega.
On May 26, 2007, Padilla-Tapia went to a dance at the Chehalis fairgrounds in Centralia along with Lucas, Ortega, and Gabriel Vanegas. Padilla-Tapia and his group consumed alcohol at the dance. PadillaTapia left the dance sometime between 11 pm and midnight along with two or three men visiting from California. They stopped to purchase beer before returning to trailer 4-A.
Isidro and his cousin, Antonio Barro Chavelas (Antonio), also went to the Chehalis fairgrounds that evening. When Isidro and Antonio arrived at the fairgrounds, they saw their cousin, Salome, in the parking lot. Because Salome was not feeling well, the three men left the fairgrounds, purchased beer at a store, then returned to trailer 4-A, where they began drinking. Padilla-Tapia and the men from California arrived at the trailer 40 minutes to an hour later. Everyone at the trailer continued drinking beer. Everyone at the party appeared to be getting along and there was no conflict between Padilla-Tapia and Salome. At some point, Padilla-Tapia and others left trailer 4-A to attend a party across the street. Padilla-Tapia continued drinking beer at the other party and after about half an hour, at approximately 3:00 am, returned to his trailer. Salome left trailer 4-A sometime after Padilla-Tapia returned. After Salome departed, Padilla-Tapia also left his trailer.
Antonio woke up at approximately 4:30 am and left his trailer. When he opened his door, he saw Salome's body lying on the ground. At first, Antonio thought that Salome was just drunk and lying down, but he soon saw that Salome's neck had been cut. Antonio called a relative, who told Antonio to call 911, and police officers arrived shortly thereafter.
Forensic pathologist Dr. Daniel Selove determined that Salome suffered from approximately 24 stab wounds, with the most critical injuries occurring from four stab wounds to the back that punctured Salome's lungs and one stab wound to the head that punctured his brain. Selove determined that Salome most likely died from a combination of blood loss and an inability to breathe.
That same morning, police officers arrested Padilla-Tapia in Lewis County. Officers found Padilla-Tapia near Vanegas's 1992 Geo Metro that Vanegas had reported stolen from the trailer park earlier that day. Police saw blood on the car's steering wheel and hand brake. Padilla-Tapia had blood on his clothing, shoes, and hands. Tests later determined that the blood from Padilla-Tapia's right hand, clothing, the car's steering wheel, and the hand brake was Salome's. Police found the key to Vanegas's car in Padilla-Tapia's pocket. Detective Frank Frawley, a Spanish-speaking officer, arrived at the scene and gave Padilla-Tapia a card with Miranda rights written in Spanish that Padilla-Tapia read out loud.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On May 30, 2007, the State charged Padilla-Tapia with second degree intentional murder while armed with a deadly weapon, contrary to RCW 9A.32.050(1)(a), RCW 9.94A.602, and RCW 9.94A.533(4). Procedural Facts
A jury trial began on December 3, 2007. The State presented extensive expert testimony regarding blood spatter evidence. Christopher Hamburg, a forensic scientist with the Washington State Patrol Crime Lab, testified that based on the pattern of blood on Padilla-Tapia's shoes, Salome's blood would have traveled through the air, up to six feet, before coming into contact with the shoes. Hamburg also testified that blood spots found on Padilla-Tapia's jeans were airborne and contact transfer stains. Hamburg concluded that Padilla-Tapia was in close proximity to Salome at the time he was stabbed.
The State also called Lucas, who testified as follows:
Q. Do you recall talking to the police about a statement that Mr. Padilla-Tapia made about harming someone?. . . .
A. Well, it was not the same day. At times — we all share things among ourselves, and he had said that he felt like killing someone, and I'm not sure if he said that to me to make me feel afraid, but he had said that three times, so I don't know whether he just wanted to scare me with that or that's a saying that he has.
2 Report of Proceedings (RP) at 225-26.
On cross-examination, Lucas explained that he did not take Padilla-Tapia's remarks seriously and "thought it was like a saying." 2 RP at 230.
Padilla-Tapia testified that he left trailer 4-A sometime after Salome and, while heading toward another trailer, he heard a noise. Padilla-Tapia stated that he saw Salome lying down and that he knew Salome was still alive because he remembered Salome saying, "No." 6 RP at 616. He explained why he left Salome lying there:
I saw him. I wanted to help him, and I went to grab him, but I got stained and I panicked. I didn't know what to do, and I've just been here for half a year.
. . . .
I was quite drunk and I panicked.
. . . .
I just grabbed him. I lifted him up a little bit, and then I panicked. I thought I would probably be blamed for this. I wanted to get out of there.
6 RP at 615, 617, 643.
Padilla-Tapia further explained that he was with Salome for three to five minutes and that he had touched Salome. But he stated that he was intoxicated at the time and that he could not remember exactly how he touched him. After briefly returning to trailer 4-A, Padilla-Tapia left in Vanegas's Geo Metro, explaining that, "I left feeling afraid, and I left driving a car because I almost always drive the car and almost always have the keys on me." 6 RP at 618. Padilla-Tapia denied killing Salome.
On cross-examination, the State asked Padilla-Tapia the following:
[State]. And when you were arrested, once the police caught up with you, you immediately told them this story, correct?
[Defense counsel]: Objection, Your Honor.
THE COURT: Sustained.
[State]. Have you ever told anyone this story?
[Defense counsel]: Objection, Your Honor.
THE COURT: Overruled. He can answer yes or no.
[Padilla-Tapia]. No.
6 RP at 649.
In closing argument, the State remarked:
There's only two people that know what happened. One of them's dead. The other person is seated here before you. Mr. Padilla-Tapia's telling you this unbelievable story from the witness stand seven months later, and this is the first time he's ever told that story. The evidence does not lie. The evidence does not seek to deceive.
6 RP at 676.
The jury found Padilla-Tapia guilty of second degree murder and returned a special verdict finding Padilla-Tapia was armed with a deadly weapon. The trial court sentenced Padilla-Tapia to 220 months for second degree murder plus 24 months for the weapons enhancement for a total of 244 months incarceration, and a 24-to 48-month term of community custody. Padilla-Tapia timely appeals his judgment and sentence.
ANALYSIS
Padilla-Tapia contends that the trial court erred when it allowed the State to elicit testimony commenting on Padilla-Tapia's constitutional right to silence and argues that the State improperly emphasized that same testimony in closing argument. The State responds that the prosecutor's question was proper because the prosecutor was using Padilla-Tapia's pre-arrest silence for the limited purpose of impeaching his testimony. The State alternatively argues that even if the prosecution was referring to Padilla-Tapia's post-arrest silence, Padilla-Tapia waived his right to silence when he elected to speak to police officers after having read his Miranda warnings in Spanish. Although the prosecutor's question referred to Padilla-Tapia's post-arrest silence, we agree with the State that Padilla-Tapia waived his right to silence when he elected to speak with the police.
The Fifth Amendment of the United States Constitution states, in part, that no person "shall . . . be compelled in any criminal case to be a witness against himself." Similarly, article I, section 9 of the Washington Constitution reads: "[n]o person shall be compelled in any criminal case to give evidence against himself." We give the same interpretation to both clauses and liberally construe the right against self-incrimination. State v. Easter, 130 Wn.2d 228, 235-36, 922 P.2d 1285 (1996).
In Washington, a defendant's constitutional right to silence applies in both pre-and post-arrest situations. Easter, 130 Wn.2d at 243. In a post-arrest context, it is well settled that a prosecutor's comment on the defendant's silence is fundamentally unfair and violates his right to due process. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). And Miranda warnings themselves carry the implicit assurance that the defendant's silence will carry Page 7 no penalty. Doyle, 426 U.S. at 618; State v. Belgarde, 110 Wn.2d 504, 511, 755 P.2d 174 (1988). But when, as here, a defendant elects to testify at trial and thus puts his credibility at issue, a prosecutor may comment on a defendant's pre-arrest silence for the limited purpose of impeachment. Easter, 130 Wn.2d at 237 (citing Fletcher v. Weir, 455 U.S. 603, 606-07, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982); Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980); Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926)). A prosecutor may not, however, use the defendant's pre-arrest silence as substantive evidence of guilt. State v. Burke, 163 Wn.2d 204, 206, 181 P.3d 1 (2008). When a defendant chooses not to remain silent and instead talks to 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, cert. denied, 439 U.S. 870 (1978)), cert. denied, 534 U.S. 1000 (2001).
The parties first dispute whether the prosecutor referenced pre-arrest or post-arrest silence in questioning Padilla-Tapia. Here, the prosecutor's question, "Have you ever told anyone this story?" (6 RP at 649) coupled with his remarks in closing argument, "Mr. Padilla-Tapia's telling you this unbelievable story from the witness stand seven months later, and this is the first time he's ever told that story" (6 RP at 676), appears to encompass a time frame beyond those few hours between the commission of the crime and the time of Padilla-Tapia's arrest. We find that the prosecutor's question to Padilla-Tapia and his comments at closing argument referenced both Padilla-Tapia's pre-and post-arrest silence.
The State alternatively argues that the prosecutor's question regarding Padilla-Tapia's post-arrest silence was proper because Padilla-Tapia waived his Miranda rights by electing to speak with Detective Frawley. Although Frawley testified that "[Padilla-Tapia did] not say[] much. He just, you know, stood there" (4 RP at 455), an invocation of the Fifth Amendment right to silence requires no magic words, but must be "asserted by conduct `sufficiently definite to apprise' the listener that the claim is being made." Burke, 163 Wn.2d at 220-21 (quoting Quinn v. United States, 349 U.S. 155, 164, 75 S. Ct. 668, 99 L. Ed. 964 (1955). The record shows that Padilla-Tapia read his Miranda rights in Spanish from a warnings card that Detective Frawley had given him. There is no evidence that Padilla-Tapia asserted his right to silence and Padilla-Tapia does not assert that he did. Moreover, Padilla-Tapia testified at trial that he spoke with Frawley "for quite some period of time." 6 RP at 653.
Because the record shows that Padilla-Tapia waived his right to silence by electing to speak with Detective Frawley "for quite some period of time" (6 RP at 653), the prosecutor properly inquired about what Padilla-Tapia did not say to bring into question Padilla-Tapia's credibility and to suggest that his story about how he contacted Salome's blood was a recent fabrication. Clark, 143 Wn.2d at 765 (citing Young, 89 Wn.2d at 621). Thus, the trial court did not err when it overruled the defense counsel's objection to this line of questioning.
Moreover, given (1) evidence that Padilla-Tapia had been drinking excessively on the night of Salome's death; (2) Lucas's testimony that Padilla-Tapia previously stated that he felt like killing someone; (3) the forensic expert's testimony that established the blooddrop pattern on Padilla-Tapia's clothing could not have been acquired by transfer under Padilla-Tapia's account of events but only by being present during the stabbing; and (4) evidence that Padilla-Tapia fled the scene moments after Salome's death in a stolen car, we are convinced beyond a reasonable doubt that the jury verdict would have been the same absent the alleged error. See Easter, 130 Wn.2d at 242 (A constitutional error, including a violation of a defendant's right to silence, is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of error.). Accordingly, we affirm.
Because the prosecutor's question did not improperly comment on Padilla-Tapia's constitutional right to silence, we do not reach his ineffective assistance of counsel claim. Moreover, the record shows that Padilla-Tapia's defense counsel objected to the prosecutor's question at 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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and PENOYAR, A.C.J., concur.