The Doyle reasoning does not apply where a defendant claims to have provided information to the officers at the time of arrest and the State has evidence that actually the defendant remained silent. State v. Vargas, 25 Wn. App. 809, 812, 610 P.2d 1 (1980) (citing Doyle, 426 U.S. at 619 n. 11); see also State v. Kendrick, 47 Wn. App. 620, 631, 736 P.2d 1079 (1987). In Vargas, the defendant testified that he had cooperated fully and had given a statement.
Chapman, at 24. See also State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980); State v. Vargas, 25 Wn. App. 809, 610 P.2d 1 (1980) (reviewing the history of our courts' tests for determining whether constitutional error is harmless). A thorough review of the record in the instant case reveals that there was overwhelming evidence supporting the jury's verdict.
Washington courts have held that when the accused opens the door to otherwise prohibited comments about their postarrest silence, the defendant has waived their right to have the evidence excluded on constitutional grounds. State v. Vargas, 25 Wn.App. 809, 812, 610 P.2d 1 (1980); State v. Kendrick, 47 Wn.App. 620, 630-31, 736 P.2d 1079 (1987).
To obtain appellate review of a trial court's exclusion of evidence, the appellant must make an offer of proof at trial. State v. Vargas, 25 Wn. App. 809, 816-17, 610 P.2d 1 (1980). The offer of proof "must be more than mere argument or colloquy"; the offer should be sufficiently definite and comprehensive to advise the trial court as to whether the evidence is admissible, as well as inform the appellate court whether exclusion prejudices the appellant.
[4] However, Doyle does not apply where the defendant's post-arrest silence is being introduced to challenge the defendant's evidence of cooperation following arrest. State v. Vargas, 25 Wn. App. 809, 610 P.2d 1 (1980). In Vargas, the defendant testified that he cooperated fully with the authorities and had given a statement to the police.
Doyle v. Ohio, supra; State v. Modica, 18 Wn. App. 467, 569 P.2d 1161 (1977); State v. Upton, 16 Wn. App. 195, 198-99, 556 P.2d 239 (1976); but see State v. Cosden, supra (distinguishing Upton and Modica). [6] The prosecutor's question, and the defendant's ambiguous answer, were error. However, they constituted a passing comment rather than a full exploration of the question as occurred in State v. Vargas, 25 Wn. App. 809, 812, 610 P.2d 1 (1980). If the comment is error, it is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065 (1967); State v. Fricks, 91 Wn.2d 391, 396, 588 P.2d 1328 (1979).
[Fn. 17 by Court of Appeals] See Jones, 168 Wn.2d at 721. [Fn. 18 by Court of Appeals] State v. Vargas, 25 Wn.App. 809, 816-17, 610 P.2d 1 (1980).
¶ 160 Washington courts have consistently refused to find harmless error in cases like Lui's, where the untainted evidence was incomplete and suggested but did not overwhelmingly establish the State's theory. See State v. Grenning, 169 Wash.2d 47, 59–60, 234 P.3d 169 (2010); State v. Maupin, 128 Wash.2d 918, 928–30, 913 P.2d 808 (1996); State v. Easter, 130 Wash.2d 228, 242–43, 922 P.2d 1285 (1996); State v. St. Pierre, 111 Wash.2d 105, 119–20, 759 P.2d 383 (1988); Stephens, 93 Wash.2d at 190–91, 607 P.2d 304;State v. Romero, 113 Wash.App. 779, 794–95, 54 P.3d 1255 (2002); State v. McDaniel, 83 Wash.App. 179, 187–88, 920 P.2d 1218 (1996); State v. Vargas, 25 Wash.App. 809, 815–16, 610 P.2d 1 (1980). ¶ 161 Moreover, the tainted testimony in this case was substantial and crucial to the State's theory.
See State v. McCullum, 98 Wn.2d 484, 487-88, 656 P.2d 1064 (1983); State v. Papadopoulos, supra at 402 n. 1 (citing State v. McKim, supra). For discussions of the inconsistent Washington cases on this issue, see State v. Evans, 96 Wn.2d 1, 5-10, 633 P.2d 83 (1981) (Brachtenbach, C.J., concurring) and State v. Vargas, 25 Wn. App. 809, 812-16, 610 P.2d 1 (1980). Under the first approach, the appellate court looks only at the tainted evidence and asks if it might have played a part in ( i.e., "contributed to") the fact finder's determination of guilt.
See Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 169-70, 876 P.2d 435 (1994) ("The exclusion of evidence which . . . has speculative probative value is not reversible error."); cf. State v. Vargas, 25 Wn.App. 809, 817, 610 P.2d 1 (1980) (offer of proof "must be sufficient to advise the appellate court whether the party was prejudiced by the exclusion of the evidence").