                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             April 12, 2016



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                               No. 46093-9-II

                                 Respondent,

         v.

    JASON PAUL JOSEPH HERNANDEZ,                                UNPUBLISHED OPINION

                                   Appellant.

        MAXA, J. — Jason Hernandez appeals his convictions for possession of a stolen vehicle,

reckless driving, and violation of his duty on striking an unattended vehicle (hit and run). We

dismiss without prejudice Hernandez’s possession of a stolen vehicle conviction based on State

v. Satterthwaite, 186 Wn. App. 359, 344 P.3d 738 (2015), because the information did not allege

that he withheld or appropriated the stolen vehicle to the use of a person other than the true owner.1

        Regarding Hernandez’s other convictions, we hold that (1) a witness’s testimony that

Hernandez did not want to talk after his arrest did not violate Hernandez’s right against self-

incrimination, (2) the prosecutor did not engage in misconduct or violate Hernandez’s right

against self-incrimination by stating that the only thing Hernandez said after arrest was a boast

about how fast he was driving, and (3) Hernandez did not receive ineffective assistance of


1
  Hernandez also argues that his possession of a stolen vehicle conviction should be reversed
because the trial court’s to-convict instruction was erroneous, his right to a unanimous verdict
was violated, and (in a statement of additional grounds) the evidence was insufficient to convict
him. Because we reverse Hernandez’s conviction on other grounds, we do not address these
issues.
No. 46093-9-II


counsel based on defense counsel’s failure to offer Hernandez’s exculpatory postarrest

statements under the rule of completeness and to contest the State’s motion to exclude those

statements. Therefore, we affirm those convictions. But we hold that the trial court erred in

imposing legal financial obligations (LFOs) without determining Hernandez’s ability to pay.

       We reverse Hernandez’s conviction for possession of a stolen vehicle, affirm

Hernandez’s convictions for reckless driving and violation of his duty on striking an unattended

vehicle, and remand for further proceedings consistent with this opinion.

                                             FACTS

       A police officer was running the license plates of passing cars, one of which turned up

stolen. The officer pursued the car, but it dangerously increased its speed and the officer

discontinued the pursuit. Soon afterward, the vehicle crashed into an unoccupied truck in a

parking lot. The vehicle’s occupants, among them Hernandez, fled from the scene on foot.

Other police officers arrived and chased the occupants, and eventually cornered and apprehended

them. Officer Michel Volk detained and arrested Hernandez.

       During the booking process, Hernandez saw a nurse to determine if he was injured. The

nurse asked Volk how fast the car was traveling when it crashed. Volk replied that she believed

the car was going about 60 miles per hour. According to Volk’s testimony, Hernandez then said,

“You don’t know. We were going 100-plus when we crashed.” Report of Proceedings (RP) at

234. Later, Hernandez reiterated to Volk, “With all due respect, Officer Volk, you don’t know

what you’re talking about. We were going between 70 and 100 miles per hour when we

crashed.” RP at 234.




                                                 2
No. 46093-9-II


         Hernandez then told Volk that he was not the driver of the car, but had been picked up at

a convenience store and was a passenger in the back seat. He also said that there were three

people in the car, but that he did not know who the driver of the car was and would not tell police

who the other people in the car were.

         Believing that Hernandez was the driver of the vehicle, the State charged him by

information with possession of a stolen vehicle, reckless driving, and violation of his duty on

striking an unattended vehicle (hit and run). Regarding the possession of a stolen vehicle charge,

the information did not allege that Hernandez withheld or appropriated the stolen vehicle to the

use of a person other than the owner.

         The State moved in limine to exclude Hernandez’s exculpatory postarrest statements on

the ground that they constituted self-serving hearsay because Hernandez did not plan on

testifying at trial. Hernandez’s attorney did not object, and in fact agreed the exculpatory

statements were inadmissible.

         During trial, Volk testified that when she arrested Hernandez and read him the Miranda2

rights, Hernandez “stated he didn’t want to talk and that he was dizzy.” RP at 227. Hernandez

objected to this testimony on grounds that it could lead the jury to infer that he remained silent

after arrest. The trial court sustained the objection and issued a curative instruction stating that

“a defendant has a right to remain silent. The jury will disregard any testimony that the

defendant said that he did not want to talk and any inferences therefrom.” RP at 230. The State

made no further references to the matter.




2
    Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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No. 46093-9-II


       During closing argument, the prosecutor referenced the statements Hernandez made to

Volk following his arrest. The prosecutor stated:

       What we have in this case is a person who the moment he realized he was caught
       did everything he could to avoid taking accountability. And who even when he had
       a chance to say something about it, the only thing he said was a prideful boast about
       how fast he actually was going.

RP at 373. Hernandez objected without stating a basis and the trial court sustained the objection.

The prosecutor continued:

       The only thing he said was that I’m sorry, you don’t know what you’re talking
       about. We were driving – we were going 70 to 100 miles per hour.

RP at 373. Hernandez did not object to this statement.

       Immediately following the State’s argument, Hernandez moved for a mistrial on grounds

that the prosecutor had commented on Hernandez’s postarrest statement in such a way as to

imply that Hernandez chose to remain silent and to encourage the jury to infer guilt from silence.

The trial court denied the motion but issued another curative instruction: “[W]e want to remind

you that evidence comes from the witnesses that testify and the exhibits that are admitted into

evidence. The lawyers’ statements are not evidence.” RP at 380.

       The jury found Hernandez guilty on all counts. For all three convictions, the trial court

imposed as a discretionary LFO the cost of court-appointed counsel. Hernandez appeals his

convictions and the imposition of LFOs.

                                           ANALYSIS

A.   INSUFFICIENT CHARGING DOCUMENT

       Hernandez claims that the information filed in this case was insufficient to charge him

with the crime of possession of a stolen vehicle. We agree.



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No. 46093-9-II


        A criminal defendant has a constitutional right to be informed of the charges against him.

State v. Johnson, 180 Wn.2d 295, 300, 325 P.3d 135 (2014). An information is constitutionally

sufficient only if it includes all of the essential elements of the crime, statutory and nonstatutory. Id.

If the State fails to allege every essential element, we must dismiss the charge without prejudice. Id.

at 300-01. We review challenges to the sufficiency of a charging document de novo. Id. at 300.

        Where a defendant challenges the sufficiency of a charging document for the first time on

appeal, we construe the document liberally in favor of validity. Satterthwaite, 186 Wn. App. at

362. Under this standard, we will uphold a charging document first challenged on appeal if all

necessary elements of the crime appear in any form, or by fair construction can be found in the

information. Id. However, we will find the charging document insufficient if we cannot fairly

construe the charging document as alleging an essential element of the crime. Id. at 362-63.

        RCW 9A.56.068(1) states: “A person is guilty of possession of a stolen vehicle if he or

she possess [possesses] a stolen motor vehicle.” RCW 9A.56.140(1) states:

        “Possessing stolen property” means knowingly to receive, retain, possess, conceal,
        or dispose of stolen property knowing that it has been stolen and to withhold or
        appropriate the same to the use of any person other than the true owner or person
        entitled thereto.

(Emphasis added.) In Satterthwaite, this court held that withholding or appropriating the stolen

vehicle to the use of a person other than the true owner is an essential element of possession of a

stolen vehicle. 186 Wn. App. at 364. Further, this court held that an information charging

possession of stolen property was insufficient if it did not allege the “withhold or appropriate

element.” Id. at 365-66.




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No. 46093-9-II


        Here, as in Satterthwaite, the information charging Hernandez with possession of a stolen

vehicle did not allege that Hernandez withheld or appropriated the stolen vehicle to the use of

someone other than the true owner. Therefore, the information is constitutionally insufficient.

        The State points out that in Satterthwaite, this court stated that the information was

insufficient because it “did not mention withholding or appropriating the stolen vehicle to the use of

a person other than the owner and did not cite RCW 9A.56.140.” 186 Wn. App. at 365. Here, the

information did cite RCW 9A.56.140. The State argues that its reference to RCW 9A.56.140

distinguishes this case from Satterthwaite and constitutes a sufficient allegation of withholding or

appropriation.

        However, mere citation to a statute is insufficient to allege a violation of its contents. State

v. Naillieux, 158 Wn. App. 630, 645, 241 P.3d 1280 (2010). “[D]efendants should not have to

search for the rules or regulations they are accused of violating.” State v. Kjorsvik, 117 Wn.2d 93,

101, 812 P.2d 86 (1991). This court did not hold in Satterthwaite that citation to RCW 9A.56.140,

standing alone, is sufficient to allege that a defendant withheld or appropriated a stolen vehicle.

        Because no fair reading of the information disclosed that Hernandez withheld or

appropriated the stolen vehicle to the use of someone other than the true owner, we reverse his

conviction for possession of a stolen vehicle and dismiss that charge without prejudice.

B.      VIOLATION OF RIGHT AGAINST COMPELLED SELF-INCRIMINATION

        Hernandez argues that the State violated his constitutional right against self-incrimination

when (1) Volk testified that Hernandez did not want to talk after his arrest, and (2) the prosecutor

stated in closing argument that the only thing Hernandez said after his arrest was a boast about how

fast the car was going. We disagree because both Volk’s testimony and the prosecutor’s argument



                                                    6
No. 46093-9-II


were mere references to Hernandez’s silence that did not implicate the right against self-

incrimination.

       1.   Legal Principles

       The Fifth Amendment to the United States Constitution states that “[n]o person . . . shall

be compelled in any criminal case to be a witness against himself.” Article I, section 9 of the

Washington Constitution states that “[n]o person shall be compelled in any criminal case to give

evidence against himself.” Both provisions guarantee a defendant the right to be free from

compelled self-incrimination, including a right to silence. State v. Knapp, 148 Wn. App. 414,

420, 199 P.3d 505 (2009).

       The Supreme Court has distinguished between a “comment” on the constitutional right to

remain silent and a “mere reference” to silence. State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1

(2008). A “comment” involves the State’s use of a defendant’s silence to its advantage either as

substantive evidence of guilt or to invite an inference that the defendant’s silence was an

admission of guilt. Id. at 217; see also State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).

Such a comment violates the United States and Washington constitutions. Burke, 163 Wn.2d at

217.

       Conversely, a “mere reference” is a statement that only indirectly refers to a defendant’s

silence. See State v. Pottorff, 138 Wn. App. 343, 347, 156 P.3d 955 (2007). Such a statement

will not be considered a comment on the right to remain silent if it was “ ‘so subtle and so

brief’ ” that it did not necessarily emphasize the defendant’s silence. Burke, 163 Wn.2d at 216

(quoting State v. Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978)). A mere reference to




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No. 46093-9-II


silence is not a constitutional violation unless the defendant shows some prejudice. Burke, 163

Wn.2d at 216.

        2.   Officer Volk Testimony

        A testifying police officer violates a criminal defendant’s right against self-incrimination by

commenting on the defendant’s silence or failure to respond fully to questioning. Lewis, 130 Wn.2d

at 705. Hernandez characterizes Volk’s testimony as a direct comment on his exercise of his right

to remain silent. But Volk did not testify that Hernandez was in fact silent or refused to answer

questions. She merely testified that Hernandez “stated he didn’t want to talk and that he was dizzy.”

RP at 227. This was not a comment on Hernandez’s silence. It was subtle and brief, did not

emphasize Hernandez’s silence, and did not suggest guilt or an admission of guilt. Further, the

State never argued that Hernandez’s statement that he did not want to talk was evidence of guilt.

        The Supreme Court addressed similar situations in Lewis and State v. Sweet, 138 Wn.2d

466, 481, 980 P.2d 1223 (1999). In Lewis, a police officer testified that the defendant told him over

the telephone that he was innocent, and that the officer told him “if he was innocent he should just

come in and talk to me about it.” 130 Wn.2d at 703. The court held that this was not a comment on

the defendant’s silence because the officer did not testify that the defendant refused to talk further

about the matter with police. Id. at 706. Similarly, in Sweet a police officer testified that the

defendant told him after arrest that he would submit to a polygraph and possibly provide a written

statement at a later time, indirectly indicating that the defendant was silent in the interim. 138

Wn.2d at 480. The court considered that testimony to be a mere reference to silence that was not

reversible error absent a showing of prejudice. Id. at 481.




                                                    8
No. 46093-9-II


        Volk’s testimony is similar to the testimony in Lewis and Sweet in that the jury could

reasonably infer that the defendant was silent, but not that his silence indicated his guilt. As a

result, Volk’s statement was at most a mere reference to Hernandez’s silence.

        In addition, Hernandez has not shown that Volk’s statement prejudiced him. The trial court

quickly sustained Hernandez’s objection, struck Volk’s statement that Hernandez did not want to

talk, and gave a curative instruction ordering the jury not to consider that statement. Therefore,

there was little possibility of prejudice based solely on this testimony.

        We hold that Volk’s mere reference to the fact that Hernandez did not want to talk did not

violate Hernandez’s right against self-incrimination.

        3.   Prosecutorial Misconduct

        Hernandez argues that the State committed prosecutorial misconduct and violated his right

against self-incrimination by commenting on his partial silence in closing argument.3 A prosecutor

may not comment on a defendant’s postarrest silence during closing argument. State v. Fuller, 169

Wn. App. 797, 818-19, 282 P.3d 126 (2012). As noted above, a prosecutor comments on the

defendant’s silence by using it to the State’s advantage as evidence of guilt. Burke, 163 Wn.2d at

217. But a mere reference to silence is not a constitutional violation unless the defendant shows

some prejudice. Id. at 216.




3
 Hernandez also argues that the prosecutor’s statements were improper because they were
deliberately misleading. The prosecutor stated that the only thing Hernandez said was a boast
about the car’s speed, when in fact the trial court had excluded Hernandez’s statements that he
was not driving the car. However, Hernandez raised this argument only in a footnote, and we
generally decline to consider arguments raised only in footnotes. See State v. Johnson, 69 Wn.
App. 189, 194 n.4, 847 P.2d 960 (1993).


                                                    9
No. 46093-9-II


       Here, the prosecutor argued to the jury that “the moment [Hernandez] realized he was

caught [he] did everything he could to avoid taking accountability.” RP at 373. He continued:

“[E]ven when he had a chance to say something about it, the only thing he said was a prideful boast

about how fast he actually was going.” RP at 373. After the trial court sustained Hernandez’s

objection to this statement, the prosecutor told the jury “[t]he only thing [Hernandez] said was that

I’m sorry, you don’t know what you’re talking about. We were driving – we were going 70 to 100

miles per hour.” RP at 373.

       On their face, these statements were not direct comments on Hernandez’s silence. Instead,

the prosecutor was commenting on what Hernandez did say. He emphasized that Hernandez was

boasting about how fast the car was going.

       The prosecutor arguably made an indirect reference to Hernandez’s silence by stating that

“the only thing” he said was the boast about the car’s speed. RP at 373. This argument was not a

comment on Hernandez’s silence. It was subtle and brief, did not emphasize Hernandez’s silence,

and did not suggest guilt or an admission of guilt. Further, the State never argued that Hernandez’s

statement about speed was evidence of his guilt. The State certainly did not use Hernandez’s

partial silence to its advantage either as substantive evidence of guilt or to invite an inference that

his silence was an admission of guilt. See Burke, 163 Wn.2d at 217.

       We hold that the prosecutor’s statements about what Hernandez said did not constitute

misconduct and did not violate Hernandez’s right against self-incrimination.

C.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Hernandez argues that he received ineffective assistance of counsel because his attorney (1)

failed to offer Hernandez’s exculpatory postarrest statements as evidence under the common law



                                                  10
No. 46093-9-II


rule of completeness and (2) failed to object to the State’s motion to exclude those statements. We

disagree.

        We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on such a claim, the defendant must show that (1)

defense counsel's representation was deficient, and (2) the deficient representation prejudiced the

defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011).

        Representation is deficient if, after considering all the circumstances, it falls below an

objective standard of reasonableness. Id. at 33. We presume counsel's performance was not

deficient. Id. at 33. The defendant may rebut this presumption by showing that the performance

was not a matter of legitimate trial strategy or tactics, and fell below an objective standard of

reasonableness. Id. Prejudice exists if there is a reasonable probability that except for counsel's

errors, the result of the proceeding would have differed. Id. at 34. In this context, a reasonable

probability is a probability sufficient to undermine confidence of the outcome. Id.

        1.   Failure to Offer Statements under Rule of Completeness

        Hernandez argues that his attorney provided ineffective assistance because she failed to

offer his postarrest exculpatory statements under the rule of completeness. We disagree.

        ER 106 states the rule of completeness in Washington. See State v. Roberts, 142 Wn.2d

471, 496, 14 P.3d 717 (2000) (referring to ER 106 as the rule of completeness). ER 106 provides:

        When a writing or recorded statement or part thereof is introduced by a party, an
        adverse party may require the party at that time to introduce any other part, or any
        other writing or recorded statement, which ought in fairness to be considered
        contemporaneously with it.

Under its plain language, this rule applies only to written or recorded statements. State v. Perez, 139

Wn. App. 522, 531, 161 P.3d 461 (2007). This court in Perez expressly stated that the rule of


                                                   11
No. 46093-9-II


completeness does not apply to oral statements. Id. Therefore, defense counsel was not deficient in

failing to offer Hernandez’s statements under ER 106.

       Hernandez argues that ER 106 only partially codified the rule of completeness and that the

common law doctrine survives, citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72, 109 S.

Ct. 439, 102 L. Ed. 2d 445 (1988). He claims that the common law rule applies to oral statements.

However, he cites no Washington authority for the proposition that there is a separate rule of

completeness in Washington that exists apart from ER 106.

       The court in Perez did not contemplate some separate common law rule when holding that

the rule of completeness did not apply to oral statements. 139 Wn. App. at 531. On the other hand,

Division One of this court in State v. Simms considered whether to admit an oral statement under

ER 106 without holding that the rule was inapplicable as a matter of law. 151 Wn. App. 677, 692-

93, 214 P.3d 919 (2009). Arguably, it would have been reasonable for defense counsel to at least

attempt to rely on the rule of completeness to introduce the exculpatory portions of Hernandez’s

statements.

       However, even if we assume that defense counsel was deficient, Hernandez cannot prove

that the trial court would have admitted the statements. In considering a motion under the rule of

completeness, the trial court would have been faced with the plain language of ER 106 that limited

application of the rule to written or recoded statements and with the controlling authority in Perez

stating that the rule did not apply to oral statements. Given the state of the law, Hernandez cannot

show that the trial court would have ruled in his favor even if defense counsel had attempted to

introduce his oral statements.




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No. 46093-9-II


        We hold that the failure to offer the exculpatory portions of Hernandez’s statements was not

a proper basis for an ineffective assistance claim.

        2.     Failure to Object

        Hernandez also argues that his attorney provided ineffective assistance because she failed to

object to the State’s motion to exclude his exculpatory postarrest statements. We disagree.

        The State moved to exclude the exculpatory portions of Hernandez’s statements on grounds

that they constituted inadmissible self-serving hearsay. Under ER 801(d)(2), out-of-court

statements of a party offered against that party are admissible as non-hearsay, even if offered to

prove the truth of matters they assert. But a party’s out-of-court statements offered by that party as

proof of the truth of matters they assert are hearsay and are inadmissible if not subject to a hearsay

exception. State v. Finch, 137 Wn.2d 792, 824, 975 P.2d 967 (1999). Here, the trial court excluded

Hernandez’s exculpatory statements under this rule.

        As Hernandez notes, this “self-serving hearsay” rule does not render inadmissible otherwise

admissible non-hearsay or hearsay statements falling under a hearsay exception. State v. Pavlik,

165 Wn. App. 645, 650, 268 P.3d 986 (2011). But as discussed above, Hernandez’s statements

were not admissible under the rule of completeness. Hernandez asserts no other basis for

admissibility of the exculpatory portions.

        We hold that Hernandez did not receive ineffective assistance of counsel regarding his

inadmissible exculpatory statements.

D.      IMPOSITION OF LFOS

        Hernandez argues that the trial court erred in imposing discretionary LFOs on his two

misdemeanor convictions without considering whether he had the present or future ability to pay.



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No. 46093-9-II


The State argues that Hernandez waived this argument by not objecting to the imposition of LFOs

and that the record supports a finding that Hernandez did have the ability to pay.

        Under RCW 10.01.160(3), a trial court cannot require a defendant to pay discretionary

LFOs unless he or she is or will be able to pay them. State v. Blazina, 182 Wn.2d 827, 838, 344

P.3d 680 (2015). This requires an individualized inquiry into the defendant’s current and future

ability to pay discretionary LFOs. Id. However, if the defendant does not object in the trial court,

we have discretion to decline to consider the issue, as it was raised for the first time on appeal. Id. at

834-35.

        Here, because we are remanding this case for other reasons, we exercise our discretion to

consider the issue. Although there is some evidence in the record regarding Hernandez’s ability to

pay, the trial court did not make the individualized inquiry into the issue that Blazina requires.

Accordingly, on remand we direct the trial court to conduct an individualized inquiry into

Hernandez’s ability to pay discretionary LFOs before imposing them.

E.      APPELLATE COSTS

        Hernandez filed a supplemental brief requesting that, if the State substantially prevails in

this appeal, we decline to impose appellate costs on him because he claims to be indigent. We hold

that because we reverse Hernandez’s felony conviction and affirm on his two misdemeanor

convictions, the State has not substantially prevailed on appeal and is not entitled to appellate costs.

                                            CONCLUSION

        We reverse Hernandez’s conviction for possession of a stolen vehicle, affirm

Hernandez’s convictions for reckless driving and violation of his duty on striking an unattended

vehicle, and remand for further proceedings consistent with this opinion.



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No. 46093-9-II


        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.



                                                      MAXA, J.



 I concur:




 LEE, J.




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No. 46093-9-II


        BJORGEN, C.J., (dissenting) — I agree that Tacoma Police Officer Michael Volk’s

testimony that Jason Hernandez “stated he didn’t want to talk and that he was dizzy,” was not a

comment on Hernandez’s silence. Report of Proceedings (RP) at 227. However, the State’s closing

argument about what Hernandez did and did not say, in my view, crossed the line from a mere

reference to silence to an impermissible comment on silence. For that reason, I dissent.

        The majority ably sets out the principles we apply in determining whether the State’s

argument violated Hernandez’s constitutional right against self-incrimination by improperly

commenting on his silence. On the facts before us, that determination pivots on whether the

State’s remarks were a “comment” on the constitutional right to remain silent or a permissible

“‘mere reference’” to silence. See State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008)

(quoting State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996)).

        In closing argument, after referring to the statements Hernandez made to Volk following

his arrest, the prosecutor stated:

               What we have in this case is a person who the moment he realized he was
        caught did everything he could to avoid taking accountability. And who even when
        he had a chance to say something about it, the only thing he said was a prideful
        boast about how fast he actually was going.

RP at 373. The only element of this statement referring to what Hernandez did not say is the

prosecutor’s assertion that in these circumstances “the only thing he said was a prideful boast.”

RP at 373. Semantically, this is equivalent to saying, “He made a prideful boast and he did not

say anything else.” As such, I do not agree that the remark can be characterized as only asserting

what Hernandez did say. However, a remark of this nature, “he only said x,” refers to silence

only in an oblique, implicit manner. Taken in isolation, this remark, “the only thing he said was

a prideful boast,” was subtle and brief enough that it did not necessarily emphasize the


                                                 16
No. 46093-9-II


defendant’s silence. Nor, taken in isolation, did this remark invoke the defendant’s silence either

as substantive evidence of guilt or as an inference that the defendant’s silence was an admission

of guilt. Burke, 163 Wn.2d at 217. Under Burke, this one remark should be deemed a

permissible “mere reference” to silence.

          With claims of prosecutorial misconduct, though, we do not view fragments of an

argument in isolation. Instead, “[w]e review a prosecutor’s comments during closing argument

in the context of the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions.” State v. Johnson, 158 Wn. App. 677, 683, 243 P.3d 936

(2010).

          The context needed to judge the remarks Hernandez challenges is supplied by the passage

set out above. Viewed in its entirety, the prosecutor in that passage asked the jury to infer

Hernandez’s guilt from what he did not say.

          The full sentence in which the fragment just analyzed is found states:

          And who even when he had a chance to say something about it, the only thing he
          said was a prideful boast about how fast he actually was going.

RP at 373. The boast to which this refers occurred after Hernandez had been arrested. When an

innocent person is arrested and is given “a chance to say something about it,” the natural response

would be to explain that he did not commit the offense. By highlighting that Hernandez only

boasted about a characteristic of the offense when given that chance, this sentence invites the jury

to infer his guilt from what he did not say. Cf. Burke, 163 Wn.2d at 221-22.

          This message is reinforced by the first sentence in the passage set out above:

                 What we have in this case is a person who the moment he realized he was
          caught did everything he could to avoid taking accountability.



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No. 46093-9-II


RP at 373. Introduced in this way, the State's argument was that one of the primary ways in

which Hernandez tried “to avoid taking accountability” was to remain silent before the

police. The prosecutor obviously was not arguing that Hernandez failed to take accountability

by failing to proclaim his innocence. Given the purpose and context of the prosecutor’s

argument, the message it sent was that Hernandez was avoiding accountability by failing to take

responsibility for his wrongful act. The implication, all told, was that Hernandez’s silence was

evidence of both his guilt and his inability to accept its consequences.

       Considered in its context, these remarks by the prosecutor were a comment on

Hernandez’s silence and violated his Fifth Amendment right to remain silent. Such a

constitutional error warrants reversal unless the State carries the considerable burden of proving

that “beyond a reasonable doubt any reasonable jury would reach the same result absent the

error.” State v. Easter, 130 Wn.2d 228, 242, 922 P.2d 1285 (1996). Although the case against

Hernandez was strong, the evidence was not so overwhelming as to dispel the specter of

reasonable doubt.

       It is one thing, at this remove, to examine the colors of a sentence’s meaning with a gem

cutter’s eye; and quite another, in the broils of trial, to argue effectively while remaining always

within the lines of often hazy legal doctrines. Nonetheless, when much is at stake, much is

demanded. The Fifth Amendment guards the silence of the accused, and in doing so guards us

all from “the inquisitorial method of investigation in which the accused is forced to disclose the

contents of his mind, or speak his guilt.” Easter, 130 Wn.2d at 236. The Fifth Amendment thus

serves as a bulwark against the horrors of implied or forced confessions, an expedient that has

tempted government even into our own time.



                                                 18
No. 46093-9-II


       The argument at issue here is far from these examples, but did improperly invite the jury

to infer guilt from silence. With awareness of and respect for the difficulty of an advocate’s job,

that step compels reversal.



                                              ____________________________________
                                              BJORGEN, C.J.




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