                                                                           FILED
                                                                        JUNE 27, 2017
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 33957-2-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
TIMOTHY ALLEN MICHAEL BANKS,                  )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. -Timothy Banks appeals his conviction for second degree assault,

primarily arguing that his prearrest silence was used against him in violation of the Fifth

Amendment. We affirm.

                                          FACTS

       An argument between Mr. Banks and Jerald Williams concerning the placement of

a shopping cart in a Fred Meyer parking lot escalated into a physical altercation. Mr.

Banks hit Mr. Williams several times and ran off. Mr. Williams was hospitalized for his

injuries. Law enforcement later arrested Mr. Banks.

       At trial, Banks claimed self-defense and testified that he was attacked by

Williams. He also expressed concern about getting shot because he believed Williams

had a gun in his car. The prosecutor cross-examined by asking Mr. Banks if, under the
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circumstances, it was reasonable not to report the incident or go get help if he truly was

concerned for the safety of himself and his family members. The prosecutor asked a

series of questions on cross-examination, including "did you give any consideration to

running into Fred Meyer to go get help there?" "Did you ask anyone that was standing in

the parking lot that night for help?", and "According to your testimony, Mr. Williams

assaulted you first that night. Did you ever report this?" The court overruled objections

to these questions.

       While discussing the self-defense instruction in closing argument, the prosecutor

argued that a reasonable person acting in self-defense would have contacted store security

or 911, and would not have simply run away. He remarked, "Is that reasonable? IfMr.

Banks really thought that Mr. Williams had a gun [in] his car, would he really have run

away from his mother, his brother and his nephew [who remained] in the car? ... Ifhe

thinks that this person really had a gun, would he run away and not contact anyone? Not

call 911, do nothing but run away? He didn't go into the Fred Meyer's, he did not ask

help for anywhere [sic], he just ran."

                                         ANALYSIS

       Mr. Banks argues that the prosecutor erred in cross-examining him about his

failure to act and in arguing the point in closing, contending that the actions implicated

his right to remain silent. He also argues in his statement of additional grounds (SAG)




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that his counsel performed ineffectively and that he was deprived of a fair trial. We

address those contentions in the order listed.

       The United States Constitution's Fifth Amendment, made applicable to the States

by the Fourteenth Amendment, prohibits the states from forcing a defendant to testify at

trial or commenting about the defendant's failure to speak. Griffin v. Cal., 380 U.S. 609,

612-613, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); State v. Easter, 130 Wn.2d 228, 238-

239, 922 P.2d 1285 (1996). The Washington Constitution affords the same protection as

the federal constitution. State v. Magana, 197 Wn. App. 189, 195,389 P.3d 654 (2016)

(citing Easter, 130 Wn.2d at 235; State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211

(1991 )).

       As stated in Magana, "absent an express invocation of the right to silence, the

Fifth Amendment is not an obstacle to the State's introduction of a suspect's prearrest

silence as evidence of guilt." Id. Mr. Banks appears to argue that any reference to things

he did not do or did not say violates his Fifth Amendment protections. However, the

Fifth Amendment rights do not extend to noncustodial acts of silence. The prosecution's

use of noncustodial silence does not violate the Fifth Amendment unless the defendant

previously has invoked his Fifth Amendment right to silence. Salinas v. Texas, 570 U.S.

_ , 133 S. Ct. 2174, 2180, 186 L. Ed. 2d 376 (2013). The prosecutor's cross-

examination and argument all involved Mr. Banks' actions during and after the assault,




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well before he was arrested. They involve, at most, noncustodial silence that does not

implicate Fifth Amendment protections.

       Even if Mr. Banks had invoked his Fifth Amendment protection at some point, the

prosecutor's actions still were proper. The State may use a defendant's prearrest silence

to impeach his credibility if the defendant testifies at trial. Jenkins v. Anderson, 447 U.S.

231,238, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) ("Thus, impeachment follows the

defendant's own decision to cast aside his cloak of silence and advances the truth-finding

function of the criminal trial. We conclude that the Fifth Amendment is not violated by

the use of prearrest silence to impeach a criminal defendant's credibility."); State v.

Burke, 163 Wn.2d 204, 232, 181 P.3d 1 (2008).

       At trial, Mr. Banks proffered testimony that he was attacked first and responded in

self-defense. Appropriate self-defense instructions were provided to the jury. The State

sought to demonstrate that Mr. Banks' actions were not those of one who had been

attacked. Those remarks did not implicate Timothy Banks' Fifth Amendment right.

There were no remarks implicating constitutionally protected silence in either cross-

examination or in closing argument.

       There was no violation of Mr. Bank's Fifth Amendment right to silence.

       Mr. Banks also filed a SAG alleging ineffective assistance of counsel and

violation of his right to a fair trial. In a SAG, a reviewing court will consider arguments

that are not repetitive of briefing. RAP 10.lO(a). This court will not consider a

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defendant's statement of additional grounds for review if it does not inform the court of

the nature and occurrence of alleged errors. RAP 10.10( c ); State v. Bluehorse, 159 Wn.

App. 410,434,248 P.3d 537 (2011). An appellate court is not required to search the

record in support of claims made in the SAG. RAP 10.IO(c).

       The Sixth Amendment guaranty of counsel requires that an attorney perform to the

standards of the profession. Counsel's failure to live up to those standards will require a

new trial when the client has been prejudiced by counsel's failure. State v. McFarland,

127 Wn.2d 322, 333-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims,

courts must be highly deferential to counsel's decisions. A strategic or tactical decision

is not a basis for finding error. Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test:

whether or not ( 1) counsel's performance failed to meet a standard of reasonableness and

(2) actual prejudice resulted from counsel's failures. Id. at 690-692. When a claim can be

disposed of on one ground, a reviewing court need not consider both Strickland prongs.

State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007

(2007).

      Mr. Banks claims his defense counsel's representation fell below an objective

standard of reasonableness when she asked the court on three occasions to let her take her

glucose tablets when her blood sugar dipped too low. However, he does not show how




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this is objectively unreasonable nor does he demonstrate the probability that the outcome

of trial was undermined. Strickland, 466 U.S. at 669.

          Next, Mr. Banks claims counsel failed to question Mr. Williams about his temper.

However, the failure to ask a question on cross-examination is generally considered a

trial tactic, so Mr. Banks must establish the lack of a tactical reason for declining to raise

the question. State v. McNeal, 145 Wn.2d 352, 362-363, 37 P.3d 280 (2002). Moreover,

even a lame or poor cross-examination will seldom, if ever, constitute ineffective

assistance of counsel. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965 P.2d 593

(1998).

          Mr. Banks has not established that his counsel performed ineffectively.

          The SAG also contends that the right to a fair trial was violated by ( 1) the failure

to give an instruction on the inferior degree offense of third degree assault, (2) failure to

hold a CrR 3.5 hearing, and (3) failure to provide adequate audio-visual equipment for

Jurors.
                                                     <

          The record reveals that these arguments are without merit. First, in light of the

claim of self-defense, there was no factual basis for the jury to consider the inferior

degree offense of third degree assault. Mr. Banks either assaulted Mr. Williams or he

was acting in self-defense; there was no evidence to support a theory of reckless, as

opposed to intentional, injury. The court also verified with both counsel there was no

need to hold a CrR 3.5 hearing. Finally, the record shows the court made adjustments in

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the courtroom to enable the jurors to better view the video. Neither the jury nor any party

contended that the arrangements were inadequate.

       The SAG issues are without merit. Mr. Banks also requests that we waive costs

on appeal. In light of his significant past debts and the extensive restitution owed in this

case, we exercise our discretion to waive appellate costs.

       Affirmed.

       A majority of the panel has determined 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.




WE CONCUR:




       Pennell, J.




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