                                                                         FILED 

                                                                      AUGUST 5, 2014 

                                                                In the Office of the Clerk of Court 

                                                              W A State Cou rt of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )        No. 32295-5-II1
                      Respondent,             )
                                              )
       v.                                     )
                                              )
RICHARD EDWARD KREBS,                         )        UNPUBLISHED OPINION
                                              )
                      Appellant.              )

       SIDDOWAY, C.J. -     Richard Edward Krebs appeals his convictions of felony

harassment, reckless driving, and driving under the influence, charged after he drove his

sport-utility vehicle (SUV) headlong toward logging trucks in what was apparently an

inebriated, road-rage-induced game of "chicken." He argues he was denied due process

when a sheriffs deputy testified at trial that Mr. Krebs "lawyered up" rather than submit

to a blood alcohol test.

       We agree that the deputy's reference to Mr. Krebs "lawyering up" contradicted

assurances given to Mr. Krebs in Miranda l warnings, thereby violating his right to due

process. The error was harmless, however, where Mr. Krebs's objection to the deputy's



       1 Miranda   v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 32295-5-111
State v. Kre bs


statement was sustained, the jury was told to disregard it, the State made no effort to

capitalize on the statement, and the evidence against Mr. Krebs was overwhelming.

Because the error was harmless and a statement of additional grounds filed by Mr. Krebs

is meritless, we affirm his judgment and sentence.

                     FACTS ANDPROCEDlrnAL BACKGROUND

       In January 2011, Richard Krebs was involved in a one-vehicle rollover accident on

a forest road. His version of events-that he was being tailgated by logging trucks, one

of which ran him off the road-was disputed by other witnesses.

       At trial, Ken Sellers, a log truck driver, testified that he was driving his log truck

on a two-lane highway when he passed Mr. Krebs's vehicle, a small Honda SUV. After

Mr. Sellers passed him, Mr. Krebs immediately accelerated and pulled up behind the log

truck, tailgating so closely that Mr. Sellers could no longer see him. Thinking that his

truck might have kicked up a rock that struck Mr. Krebs's SUV, Mr. Sellers pulled over

and stepped out to see what was wrong. One of Mr. Sellers's responsibilities as a driver

was to provide insurance information to another driver if the log truck might have caused

damage.

       Mr. Sellers walked toward Mr. Krebs, who had stopped behind him, and asked,

"'What, did I hit you or something?'" Report of Proceedings (RP) at 77. As Mr. Sellers

walked toward Mr. Krebs's SUV, he checked over his shoulder for any traffic coming

from behind and when he turned forward again, Mr. Krebs was "coming straight at me."

                                              2

No. 32295-5-111
State v. Krebs


RP at 78. Mr. Sellers testified that he jumped out of the way, "tr[ying] to move as fast as

1 could," but that Mr. Krebs's passenger side mirror clipped his hand. ld. Mr. Krebs then

stopped again, this time in front of the log truck.

       Mr. Sellers walked toward the SUVa second time and upon reaching it, initially

held the driver's side door closed, to prevent Mr. Krebs from opening it. He attempted to

talk to Mr. Krebs while satisfying himself that Mr. Krebs did not have a weapon. Mr.

Sellers let Mr. Krebs know that he had been hit in the close encounter, and inquired again

about what he had done wrong. Mr. Krebs's only response was to get out of the SUV,

straighten the passenger side mirror that had clipped Mr. Sellers's hand, and mumble

words to the effect that "'We've got a goddamn issue here,' or, 'We've got a goddamn

problem.'" RP at 83-88. Mr. Krebs then got back in his SUV and drove off.

       Mr. Sellers returned to his own truck and continued down the highway. He had

only traveled about a quarter mile when he saw Mr. Krebs driving his SUV toward Mr.

Sellers's truck in Mr. Sellers's lane of travel. Mr. Krebs did not tum away until the last

second.

       Once was evidently not enough; further down the road, Mr. Krebs drove at Mr.

Sellers a second time, which Mr. Sellers described at trial as follows:

                 Q. What are you thinking this time?

              A. This guy-this-this person has-has some severe issues, or a
       death wish.
              Q. What are you thinking is going to happen?

                                              3

I
i


     No. 32295-5-III
     State v. Krebs


                  A. Wake up, Leroy. We're fixing to have us a wreck.
                  Q. Okay.
                  A. I mean, you know, it's-I'm on the brakes again, on the air horn
           again, and the only difference is this time, he's got two hands up in the
           windshield, just like this right here-(Witness gestures.)-shooting me the
           finger. He yanks the wheel over at the last second.

     RP at 95. After this second charge at his log truck, Mr. Sellers drove to a location where

     he knew there was a phone available and called to report Mr. Krebs's confrontational

     driving to the highway patrol. Because Mr. Sellers could not provide a license plate

     number, he was told the patrol was unable to do anything.

            Mr. Sellers then began the drive back to his jobsite. After leaving the highway for

     the forest road leading to where the log trucks loaded (referred to by some witnesses as a

     "haul" road), Mr. Sellers saw Mr. Krebs's SUV overturned off the side of the road. He

     stopped and identified himself to responding deputies as the driver who had just called to

     report the same SUV to the highway patrol.

           James Barton, also a log truck driver, corroborated Mr. Sellers's testimony that

     Mr. Krebs was driving recklessly. Mr. Barton was driving his own log truck that day

     when Mr. Sellers told him over citizens band (CB) radio about the encounter he had just

     had with the SUV. Mr. Barton then saw the SUV driving toward him, although in its

     own, opposite lane of travel. After passing Mr. Barton's truck, Mr. Krebs made a U-turn

     and pulled behind the car that was behind Mr. Barton. Mr. Barton could see in his

     rearview mirrors that Mr. Krebs was driving erratically, crossing over the double yellow


                                                  4

No. 32295-5-111
State v. Krebs


lines at times and trying to catch up to him. Cars in the oncoming lane of traffic had to

pull onto the shoulder to avoid colliding with Mr. Krebs.

       When Mr. Barton pulled off the highway onto the forest road that would take him

to where his truck was to be loaded, Mr. Krebs followed him and attempted to pass him.

Concerned about staying in control of the situation, Mr. Barton moved to block Mr.

Krebs from passing. When Mr. Barton pulled his truck off of the forest road onto the

logging spur where his truck would be loaded, Mr. Krebs continued up the road and

turned around. On his return, he stopped and glared at Mr. Barton before driving off

down the forest road behind another log truck.

       Robert McEldoon, a volunteer firefighter and emergency medical technician

(EMT) who also works for a logging company, was at work on the day of the accident

when he heard over the CB radio that a Honda SUV had rolled off the haul road. Mr.

McEldoon and his supervisor, Scott Keatley, went to the scene of the accident to assist.

The SUV had come to rest against a tree on its passenger side. Mr. Krebs was dangling

by the seatbelt in the driver's seat.

       Mr. McEldoon testified that he spoke to Mr. Krebs while Mr. Keatley held the

driver's door partway open using a pipe. Both Mr. McEldoon and Mr. Keatley testified

that an odor of consumed alcohol was coming from Mr. Krebs. Mr. Krebs was struggling

to get out of his seatbelt, so Mr. McEldoon offered to cut him out. When he did so, Mr.




                                             5

No. 32295-5-III
State v. Krebs


Krebs fell to the passenger side of the vehicle. After he fell, Mr. Krebs had difficulty

locating the ignition and removing the key as requested by Mr. McEldoon.

       Mr. McEldoon and Mr. Keatley testified that throughout their encounter Mr. Krebs

kept repeating that he wanted to die and, after a time, Mr. Krebs told them to get away

from his SUV or he would kill them. According to Mr. Keatley, Mr. Krebs stated that he

had a grenade. When Mr. Krebs persisted with his threats, both men moved to the road to

wait for law enforcement to arrive. Mr. Krebs's threats continued with the arrival of

sheriffs deputies and an ambulance; Mr. Keatley testified that Mr. Krebs threatened

paramedics who arrived and approached the SUV, saying '''I'm going to fucking kill

you.'" RP at 168-69.

       Tom Ryan, a paramedic, attended to Mr. Krebs as he was driven to the hospital.

He described Mr. Krebs as "[l]ess than cooperative," explaining that Mr. Krebs refused

medical care that was indicated for his complaints. RP at 186. He testified that Mr.

Krebs's demeanor vacillated between cooperative and unpleasant. Mr. Ryan testified that

Mr. Krebs admitted to consuming alcohol prior to the accident.

       Deputy Brady Spaulding was the first law enforcement officer to arrive at the

scene of the accident. He testified that when he approached the SUV, it smelled of

consumed alcohol and that after pulling Mr. Krebs out of and away from the SUV, it was

obvious that the smell was coming from Mr. Krebs. He testified that he and another

deputy pulled Mr. Krebs the 10 to 15 feet up the hill to the roadway and turned him over

                                             6

No. 32295-5-111
State v. Krebs


to Mr. Ryan for care. The deputy testified that upon arrival at the hospital, Mr. Krebs

was unable to walk without bracing himself against walls and counters for support. His

face was flushed; he had watery, bloodshot eyes; his speech was slurred; and his breath

smelled of alcohol.

       Deputy Spaulding advised Mr. Krebs of his Miranda rights. Mr. Krebs stated he

understood those rights and initially answered the deputy's questions about the accident,

telling the officer about being tailgated and run off the road by a logging truck. When the

deputy asked how much Mr. Krebs had to drink before the accident, Mr. Krebs first said

he had had 14 drinks, then said he had not had even one. The deputy replied to Mr.

Krebs that it was obvious he had been drinking, after which Mr. Krebs admitted drinking

half a beer as he was driving home. Mr. Krebs declined to submit to a blood alcohol test.

       The State charged Mr. Krebs with hit and run, driving under the influence,

reckless driving, and two counts of felony harassment based on the incidents leading up

to and immediately following the accident.

       Mr. Krebs's assignments of error on appeal arise from testimony at trial by Deputy

Spaulding about what happened when the deputy asked him to submit to a blood alcohol

test. Having concluded that Mr. Krebs was intoxicated, the deputy read Mr. Krebs the

implied consent warnings for blood alcohol testing. The following is the exchange at

trial that led to the issue on appeal:

               Q. You then placed him under arrest?

                                             7

No. 32295-5-III
State v. Krebs


              A. At that point, I read him his implied consent for blood.
              Q. Okay. And-
              A. Given my observations and belief that he was under the 

       influence. 

              Q. Alright. So, you did not get blood from him?
              A. 	 I did not. He refused. He lawyered up at that point.
                       MR. BALDWIN: Objection.
                       JUDGE HAAN: Sustained.
                       MR. BALDWIN: Can we approach, Your Honor?
                       JUDGE HAAN: Jury will disregard that last statement.

RP at 226-27.

       Mr. Krebs's lawyer promptly moved for a mistrial on the basis of the deputy's

reference to Mr. Krebs "lawyer[ing] up." The court excused the jury in order to hear

argument outside its presence. The court recessed for a halfhour so that it and the

lawyers could briefly research pertinent case law. After hearing argument from counsel,

the trial court denied Mr. Krebs's motion for mistriaL It reasoned that the State did not

ask a question designed to elicit testimony on Mr. Krebs's decision to quit speaking and

request a lawyer, the deputy's statement was only an indirect comment on the defendant's

right to silence, and the court's direction to the jury to disregard the statement was

sufficient to cure any harm. The court later entered written findings of fact and

conclusions of law to support its ruling.

       The jury found Mr. Krebs guilty of all charges other than felony hit and run. He

appeals.




                                              8

No. 32295-5-III
State v. Krebs


                                        ANALYSIS

       The sole issue on appeal is whether Deputy Spaulding's testimony that Mr. Krebs

"lawyered up" was a direct comment on his exercise of his right to remain silent,

violating his right to due process. 2

       Commenting on postarrest silence raises a constitutional concern grounded in due

process. Warnings under Miranda given upon arrest "constitute an 'implicit assurance' to

the defendant that silence in the face of the State's accusations carries no penalty," making

it fundamentally unfair to then penalize the defendant by offering his silence as evidence

of guilt. State v. Easter, 130 Wn.2d 228, 236, 922 P .2d 1285 ( 1996) (citing Brecht v.

Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Doyle v. Ohio,

426 U.S. 610,96 S. Ct. 2240,49 L. Ed. 2d 91 (1976)). For the government to comment

on post-Miranda silence is to "[break] its promises given in the Miranda warnings and

violate[] due process oflaw." State v. Burke, 163 Wn.2d 204,213, 181 P.3d 1 (2008).

The State impermissibly uses a criminal defendant's postarrest exercise of the rights stated

in the Miranda warning as substantive evidence of guilt when it elicits testimony from a

police officer that the defendant chose to remain silent or consult with an attorney.

Easter, 130 Wn.2d at 236; State v. Curtis, 110 Wn. App. 6, 9, 37 P.3d 1274 (2002).




       2In a pro se statement of additional grounds for review, Mr. Krebs lists 11
apparent but obscure complaints about the trial. None is sufficiently identified or
explained. We decline to review them as meritless. See RAP 10.10(c).

                                             9

No. 32295-5-III
State v. Krebs


       The State points out that Deputy Spaulding's reference to Mr. Krebs's request for

an attorney was in response to the prosecutor's questions about Mr. Krebs's refusal to

provide a blood sample. It argues that evidence ofa defendant's refusal to submit to a

blood test is not communicative testimonial evidence; rather, it is '''conduct indicating a

consciousness of guilt. '" City ofSeattle v. Stalsbroten, 138 Wn.2d 227, 234, 978 P.2d

1059 (1999) (quoting Newhouse v. Misterly, 415 F.2d 514, 518 (9th Cir. 1969». It is

well settled that the State may offer evidence of a defendant's refusal to give a blood or

breath sample and may argue that the refusal is conduct indicating consciousness of guilt.

       Here, Deputy Spaulding's answer to the question whether he had obtained blood

from Mr. Krebs answered that question ("1 did not. He refused.") but then went beyond

the question to add, "He lawyered up." RP at 226 (emphasis added). We may take

judicial notice of the fact that "lawyered up" is slang for exercising a right to legal

representation; that in the context of police work, it is most commonly used to describe

exercising the right to remain silent;3 and that in current vernacular, especially as used by



        3 See, for example, Urban Dictionary, which defines "lawyer up" as, "To plead the
Fifth Amendment; to refuse to answer questions"; and Wiktionary, which defines it as,
inter alia, "To exercise one's right to legal representation, especially on the occasion of
refusing to answer law-enforcement officials' questions without the presence of such
legal representation." URBANDICTIONARY.COM,
http://www.urbandictionary.comJdefine.php?term=lawyer+up (last visited August 4,
2014); WIKTIONARY.ORG, http://en.wiktionary.orglwikillawyer up (last modified June
19,2013).



                                              10 

No. 32295-5-111
State v. Krebs


law enforcement, it is reasonably understood to have a derogatory connotation. See

ER 201(b) (a judicially noticed fact may be one that is not subject to reasonable dispute

in that it is generally known within the territorial jurisdiction of the court). The fact that

the trial court immediately sustained defense counsel's objection to the deputy's use of

"lawyered up," immediately instructed the jury to disregard the reference, and took a 30­

minute recess to prepare for the defense motion for a mistrial demonstrates that it, too,

recognized this generally understood meaning of "lawyering up."

       Comments on a defendant's reliance on the Miranda assurance of a right to remain

silent may be direct or indirect. A direct comment makes a clear reference to the

defendant's invocation of his or her right to remain silent. Burke, 163 Wn.2d at 216.

Such comments are used as substantive evidence of guilt or suggest to the jury that the

silence was an admission of guilt. State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235

(1996). An indirect reference to the right to remain silent occurs when a witness refers to

a comment or an action by the defendant that could be inferred as an attempt to exercise

the right to remain silent. State v. Pottorff, 138 Wn. App. 343,347, 156 P.3d 955 (2007).

Indirect references are so subtle and brief that they do not necessarily emphasize the

defendant's testimonial silence. Burke, 163 Wn.2d at 216 (quoting State v. Crane, 116

Wn.2d 315,331,804 P.2d 10 (1991)).

       In State v. Romero, the arresting officer testified that the defendant was somewhat

uncooperative and that he '''read him his Miranda warnings, which he chose not to

                                              11 

No. 32295-5-111
State v. Krebs


waive, would not talk to me.'" 113 Wn. App. 779, 785, 54 P.3d 1255 (2002) (footnote

omitted). The court held that this was an impermissible direct comment on the

defendant's reliance on his right to remain silent. Id. at 793. Similarly, an officer's

testimony that he read a defendant his Miranda rights and the defendant refused to talk,

stating he wanted an attorney, was held to constitute a direct comment on the defendant's

election to remain silent in Curtis, 110 Wn. App. at 9. In Easter, the court treated an

arresting officer's testimony that a defendant did not answer him and looked away

without speaking, in a manner the officer characterized as evasive, as a direct comment

on the defendant's right to remain silent.

       Review standards differ depending on whether a comment is direct or indirect.

Romero, 113 Wn. App. at 790-91. If the comment is a direct comment, constitutional

error exists that requires constitutional harmless error analysis. Easter, 130 Wn.2d at

241. Prejudice resulting from an indirect comment is reviewed using the lower,

nonconstitutional harmless error standard to determine whether no reasonable probability

exists that the error affected the outcome. Romero, 113 Wn. App. at 791-92. If the error

was not harmless, the judgment must be reversed and remanded for a new trial. Easter,

130 Wn.2d at 242.

       Given the current import of "lawyering up," Deputy Spaulding's nonresponsive

statement is, like the officers' statements in Romero, Curtis, and Easter, a direct




                                             12 

No. 32295-5-II1
State v. Krebs


comment on Mr. Krebs's election to remain silent. But we conclude that it was harmless,

even under the constitutional harmless error standard.

      Any prejudice was limited, given the context in which the statement was made and

its isolated character. The deputy volunteered Mr. Krebs's request for a lawyer in

response to a question intended to elicit something else. The trial court immediately

sustained the objection and instructed the jury to disregard the deputy's statement. The

State agreed not to make further use of the statement and abided by that agreement.

Moreover, the jury heard testimony that Mr. Krebs had agreed to speak with the deputy at

some length before being read implied consent warnings for a blood test and cutting off

communications-and as previously noted, the jury was entitled to infer consciousness of

guilt from the refusal to submit to the blood test. Neither the prosecutor nor the deputy

suggested that the jury should infer guilt from Mr. Krebs's refusal to speak further with

the deputy. See Lewis, 130 Wn.2d at 706 ("Most jurors know that an accused has a right

to remain silent and, absent any statement to the contrary by the prosecutor, would

probably derive no implication of guilt from a defendant's silence.").

       Constitutional error is harmless only if the reviewing court is convinced beyond a

reasonable doubt that any reasonable jury would reach the same result absent the error

and where the untainted evidence is so overwhelming it necessarily leads to a finding of

gUilt. Burke, 163 Wn.2d at 222. Here, two nonpolice witnesses testified to Mr. Krebs's

threatening and erratic driving, and Mr. Sellers had made a contemporaneous report to

                                            13 

No. 32295-5-111
State v. Krebs


Mr. Barton and the highway patrol before coming across the accident site. Three other

nonpolice witnesses (including a volunteer firefighterlEMT and a paramedic) testified to

Mr. Krebs's erratic and sometimes threatening behavior, as well as to the odor of

consumed alcohol on his person and aspects of his appearance and behavior suggesting

that he was inebriated. The deputy described a number of facts about Mr. Krebs's

appearance and behavior that suggested intoxication. Both the paramedic and the deputy

testified that Mr. Krebs admitted he had been drinking-in the case of the deputy, Mr.

Krebs initially admitted having consumed 14 drinks. This untainted evidence was

overwhelming.

       In addition to assigning error to the due process violation, Mr. Krebs assigns error

to the trial court's denial of his motion for a mistrial. We review a trial court's denial of a

motion for a mistrial for abuse of discretion. A trial court should grant a mistrial only

when the defendant has been so prejudiced that nothing short of a new trial can insure

that the defendant will be tried fairly. State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514

(1994).

       While the trial court found that the deputy's comment on Mr. Krebs's exercise of

his right to remain silent was indirect and we have concluded that it was direct, our

conclusion that the error was harmless comports with the trial court's conclusion that a

mistrial was not warranted. The trial judge is best suited to judge the prejudice of a

statement. State v. Weber, 99 Wn.2d 158, 166,659 P.2d 1102 (1983). Given the isolated

                                              14 

No. 32295-5-III
State v. Krebs


nature of the deputy's reference and the court's instruction to the jury to disregard it, the

trial court did not abuse its discretion in denying the motion for a mistrial.

       Affirmed.

       A majority of the panel has determined that this opinion will not be printed in the

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.



                                               Siddoway, C.l

WE CONCUR:



Korsmo, J. ~




Lawrence-Berrey,




                                              15 

