           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                     )       No. 74827-1-1
                                         )
                      Respondent,        )
                                         )      DIVISION ONE
                      v.                 )
                                         )
RANDALL PAULSON,                         )       UNPUBLISHED OPINION
                                         )
                      Appellant.         )      FILED: July 3, 2017
                                         )

       MANN, J. — Randall Paulson appeals his conviction for possession of

methamphetamine arguing that the State improperly commented on his exercise of his

postarrest right to remain silent. Because Paulson voluntarily waived his right to remain

silent and chose to respond to police interrogation, we affirm.

                                         FACTS

A.     Arrest and Interrogation

       Based on three controlled drug buys that were conducted with a confidential

informant, the Bellevue Police Department obtained warrants to arrest Paulson and to

search his house, vehicle, and phone. On May 26, 2015, Paulson was arrested

following a traffic stop.
No. 74827-1-1/2


       Detective William Hallifax conducted two interviews with Paulson following his

arrest. The first interview occurred at the scene of Paulson's arrest. After being

advised of his Mirandal rights, Paulson agreed to speak to Hallifax. No one else was

present for this first interview and Hallifax did not record it. Hallifax asked Paulson if he

had any drugs in his car. Paulson said he didn't. Hallifax then asked if Paulson had any

drugs in the safe at his house. Paulson answered "No, my safe is wide open in my

bedroom." Hallifax asked where the drugs were. Paulson answered,"There may be

some drugs left on my other nightstand."

       Immediately after the initial interview with Paulson, police officers executed the

search warrant on Paulson's house. In Paulson's room, there were two nightstands on

either side of the bed. There was an open safe on one of the nightstands. In this

nightstand, a meth pipe, some baggies, and paperwork with Paulson's name on it were

found. In the other nightstand, police found "4.5 grams of methamphetamine and

packaging material."

       After the search, Hallifax interviewed Paulson at the police station. Paulson

confirmed that he remembered his Miranda rights and was still willing to talk. During

this conversation

               Paulson said he did not use drugs, sell drugs or give anyone
               drugs. Detective Hallifax explained that controlled buys had
               been done on him and Mr. Paulson stated that investigators
               must have been confused. He later stated that he knew
               people in the neighborhood were frustrated with him, and
               that he did not want all the homeless people coming to his
               house.[21


       I Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
               Papers(CP)at 71.
       2 Clerk's


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No. 74827-1-1/3


             He then stated that people were constantly coming to his
             house asking for dope or wanting to work for dope. Mr.
             Paulson said he might have given some people drugs in the
             past when they worked on his home. He said that he was
             just trying to help drug addicts out when they came over
             because they were sick.[3]

              When Detective Hallifax asked him why he thought drug
              addicts were constantly coming to his place asking for drugs,
              he stated he did not know. Mr. Paulson repeatedly
              demanded that he get a Pepsi and a cigarette, and if he did,
              he would tell investigators what they wanted to know.
              Detective Hallifax said no and asked what drug dealers are
              in the area. Mr. Paulson responded, "I know all the big drug
              dealers. I will give you names if you get me a Pepsi."
              Detective Hallifax ended the interview at this point.[4]

B.     Pretrial Procedure

      Paulson testified at the CrR 3.5 hearing that he asked for an attorney before the

second interview and that Hallifax did not provide him one. Paulson argued that his

statements at the police station should be suppressed because the police failed to

provide the requested attorney. Paulson did not claim that he did not understand his

rights or that he had invoked his right to silence. The trial court found Paulson's claim

that he had requested counsel "less than credible." The trial court concluded that

Paulson was read his Miranda rights, that he understood his rights, that he stated he

was willing to speak with investigators, and that he "knowingly, intelligently and

voluntarily waived his Constitutional rights, including his right to counsel." Paulson does

not challenge the trial court's CrR 3.5 findings or conclusions.

       In response to Paulson's ER 403 motion to suppress, the trial court excluded

several of Paulson's statements from trial, including:(1)that he did not use drugs or sell

       3 CPat71.
       4 CP at71.

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No. 74827-1-1/4


drugs,(2)that he knew "all the big drug dealers",(3) that people constantly came over

to his house asking for dope,(4) that he might have given some people drugs in the

past, and (5) that he tried to help sick drug addicts.

C.        Trial Testimony and Argument

          At trial, Hallifax testified that the following occurred at the scene of Paulson's

arrest:

          I asked Mr. Paulson if he was willing to speak with us, and he said he was.
          I confirmed that he understood all of his rights that were read to him, and
          he said he did understand them. I asked him several questions about the
          location of drugs in his car, and he said he didn't have any drugs in his
          car. Then 1 asked, Do you have them in the safe at your house? And he
          said, No, my safe is wide open in my bedroom. I said, Where are the
          drugs. He said, There may be some drugs left on my other nightstand,
          other than the one that the safe was on.[5]

          Hallifax then described the second interview at the police station. The following

exchange occurred between the prosecutor and Hallifax:

      [STATE]: Did you tell him what you found at his home?
      [HALLIFAX]: Yes.
      [STATE]: Did he ever deny what you found (inaudible)?
      [HALLIFAX]: No.
      [STATE]: Did he mention anyone else being in his room?
      [HALLIFAX]: No.
      Defense Counsel: Objection.
      The Court: Basis?
      Defense Counsel: Based on pretrial rulings, and rule of completeness.
      The Court: Overruled.
      [STATE]: Did he ever mention anyone else was in his room?
      [HALLIFAX]: No.
      [STATE]: Did he make any statements?
      [HALLIFAX]: Yes. 1 was asking him several questions, and he repeatedly
      demanded a Pepsi and a cigarette and he would tell us everything we
      wanted; but based on the fact that we can't provide bribes, or threats, or



          5 Report of Proceedings(RP)(Feb. 17, 2016) at   196.

                                                -4-
No. 74827-1-1/5


      promises, or anything like that, I just shut the interview down after the third
      or fourth time he had asked.[6]

      During closing argument, the prosecutor first discussed the initial post-Miranda

statements made by Paulson when he was arrested after the traffic stop:

      When Detective Hallifax asked him,"Where is your safe or do you have a
      safe?" He said,"My safe is wide open on my nightstand next to my bed."
      Detective Hallifax then asked him,"Where are the drugs?" He said, "I may
      have some drugs in my other nightstand," in a matter-of-fact tone. No
      questioning. No confusion.rn

      The prosecutor then discussed the subsequent search and the

methamphetamine located where Paulson said it would be:

      And in the other nightstand was the methamphetamine. His home. His
      bedroom. His safe. His drugs.[8]

The prosecutor then described the second interview at the police station:

      The second interview that Detective Hallifax had. He went back to the
      station. He asked Mr. Paulson if he [remembered] his rights, if he still
      understood them, if he was still willing to talk; and Mr. Paulson said he
      was still willing to talk, that he remembered his rights. Detective Hallifax
      explained to us this morning that he told Mr. Paulson what they had found
      in the way of methamphetamine. Mr. Paulson didn't deny it. His
      response: Demanding a Pepsi and a cigarette, and I'll tell you all you want
      to know. He didn't deny it. He didn't mention, you know what, that's
      actually not mine; that's someone else's. You know what, actually, there
      are these two other people that live there that might have drug
      backgrounds; that's actually [theirs]. He didn't say that. All he did was
      demand a Pepsi and a cigarette, and say I'll tell you what you want to
      know if you get me those things. That was his opportunity.[9]




      6   RP (Feb. 18, 2016) at 226-27.
      7 RP (Feb. 18, 2016) at 356.
      8   RP (Feb. 18, 2016) at 356.
      9 RP (Feb. 18, 2016) at 363.


                                          -5-
No. 74827-1-1/6


Paulson's attorney then objected: "Improper argument and comment on Fifth

Amendment." The trial court overruled the objection and reminded the jury that lawyer's

arguments are not evidence.

       The jury returned a guilty verdict. Paulson appeals.

                                        ANALYSIS

                                                1

       Paulson asserts that the State improperly commented on his constitutional right

to postarrest silence by arguing that he did not deny that the methamphetamine was in

his room and by not claiming that the methamphetamine belonged to someone else.

We disagree.

       Both the United States and Washington constitutions guarantee a criminal

defendant the right to be free from self-incrimination, including the right to silence. U.S.

CONST. amend. V; WASH. CONST. art. I, § 9; State v. Easter, 130 Wn.2d 228, 922 P.2d

1285 (1996). This right prevents the State from commenting on "the silence of the

defendant so as to infer guilt from a refusal to answer questions." State v. Lewis, 130

Wn.2d 700, 705, 927 P.2d 235(1996); State v. Clark, 143 Wn.2d 731, 764, 24 P.3d

1006 (2001). A defendant has the right to remain silent both prearrest and postarrest;

i.e., both before and after a defendant is given Miranda warnings. State v. Burke, 163

Wn.2d 204, 217, 181 P.3d 1 (2008).

        "It is well established that Miranda rights must be invoked unambiguously."

State v. Piatnitsky, 180 Wn.2d 407, 413, 325 P.3d 167(2014)(citing Davis v. Unitied

States, 512 U.S. 452,459, 114 S. Ct. 2350, 129 L. Ed. 2d 362(1994); State v. Radcliffe,

164 Wn.2d 900, 906, 194 P.3d 250 (2008)). Invocation of the right to remain silent must

                                          -6-
No. 74827-1-1/7


be unequivocal and "requires the expression of an objective intent to cease

communication with interrogating officers." Piatnitskv, 180 Wn.2d at 412.

       Once a defendant invokes the right to silence, "the State may not elicit comments

from witnesses or make closing arguments relating to a defendant's silence to infer guilt

from such silence." Easter, 130 Wn.2d at 236. However, when a defendant does not

remain silent and instead talks to police and answers substantive crime-related

questions, the State may comment on what the defendant does not say. State v. Clark,

143 Wn.2d 731, 765, 24 P.3d 1006 (2001); State v. Young, 89 Wn.2d 613, 621, 574

P.2d 1171 (1978). See also State v. Curtiss, 161 Wn. App. 673, 691-92, 250 P.3d 496

(2011).

       Young, for example, concerned a prosecution for the bombing murder of a judge.

After being arrested and read his Miranda rights, the defendant spoke to postal

inspectors about the bombing. During a two-hour car ride, the defendant "was silent

much of the time, but did make several damaging comments and asked several

inculpatory questions, all of which were testified to by the inspectors." Young, 89 Wn.2d

at 619. During closing argument, the prosecutor argued:"Now did you hear in any of

the testimony of these two men [referring to the arresting postal inspectors]—think

about this—did you hear anyone, in their entire testimony, say that the defendant

denied that he mailed the bomb or had anything to do with the construction of it?"

Young, 89 Wn.2d at 620 (alteration in original). Our Supreme Court found no error,

holding "[t]he prosecutor was entitled to argue the failure of the defendant to disclaim

responsibility after he voluntarily waived his right to remain silent and when his

questions and comments showed knowledge of the crime." Young, 89 Wn.2d at 621.

                                          -7-
No. 74827-1-1/8


       Similarly, in Curtiss, after being informed of her Miranda rights, Renee Curtiss

agreed to a taped interview concerning the murder of her former boyfriend. Believing

the statute of limitations for rendering criminal assistance had expired, Curtiss

confessed to rendering criminal assistance by helping to cover up the murder. She

provided substantive detail concerning disposal of the body and weapon. She denied

being involved with the murder or being present at the time the murder was carried out.

Curtiss, 161 Wn. App. at 685-86. At the conclusion of the interview, the detective told

Curtiss that he did not believe her and believed that she had asked for the boyfriend to

be murdered and was present at the time. Curtiss, 161 Wn. App. at 685-86. During

Curtiss's trial for first degree murder, the detective testified that during the interview

Curtiss did not react to or deny accusations that she had asked for the murder to be

carried out or that she was present in the house at the time of the murder. Division Two

of this court found the testimony proper because "Curtiss never invoked her right to

remain silent." Curtiss, 161 Wn. App. at 691-92.

       Here, like Young and Curtiss, Paulson did not invoke his right to silence. As the

trial court's unchallenged findings and conclusions confirmed, Paulson understood his

rights, and knowingly, intelligently, and voluntarily waived his rights and spoke with the

investigators. Unchallenged findings of fact entered following a CrR 3.5 hearing are

verities on appeal. State v. Piatniskv, 170 Wn. App. 195, 221, 282 P.3d 1184(2012).

After being read his Miranda rights, Paulson answered Hallifax's substantive questions

and told him where he would find the methamphetamine in his room. Paulson's

responses showed knowledge of the crime—possession of methamphetamine. It was



                                           -8-
No. 74827-1-1/9


not misconduct for the State to comment on his failure to disclaim responsibility. Young,

89 Wn.2d at 621.

       Paulson relies primarily on cases where the defendants clearly exercised their

right to silence by not responding to substantive, crime-related questions. For example,

in State v. Fuller, 169 Wn. App. 797, 816, 282 P.3d 126 (2012), after being read his

Miranda rights, Jaycee Fuller agreed to speak with detectives and answered a series of

questions about himself, including the loss of his job, an eviction, and that he had been

pawning items. Fuller, 169 Wn. App. at 806. The detective then turned to the details of

the murder investigation and informed Fuller that they had a surveillance video showing

Fuller getting into the victim's cab and that a hat was later found at the scene of the

crime. Fuller did not respond other than to say he would like to see the video. During

testimony and closing argument, the State repeatedly referred to Fuller's failure to deny

culpability. Fuller, 169 Wn. App. at 807-811.

       Division Two of this court reversed Fuller's conviction based on the State's

improper comments on his failure to deny the crime. The court held that Fuller had

unequivocally invoked his right to silence in response to substantive questioning: "Here,

Fuller invoked his right to partial silence in not responding to some of[the detective's]

questions or statements during the custodial interrogation. Thus, the State could not

elicit testimony or comment on Fuller's partial silence to infer his guilt." Fuller, 169 Wn.

App. at 816. The court distinguished Young by pointing out that unlike Young, Fuller

had not voluntarily waived his right to silence, and had made statements showing

knowledge of the crime. Fuller, 169 Wn. App. at 816.



                                          -9-
No. 74827-1-1/10


        But unlike Fuller, Paulson did not decline to answer substantive, crime-related

questions at any time during his interviews with Hallifax. During the first interview,

Paulson responded to substantive crime-related questions such as providing the

location of methamphetamine in his room. During the second interview, Paulson

continued to respond to Hallifax's questions by offering to provide answers in exchange

for a Pepsi and a cigarette.1° Because Paulson did not unequivocally invoke his right to

silence and responded to substantive, crime-related questions. The State did not

commit misconduct by commenting on his failure to deny his guilt. Clark, 143 Wn.2d at

765; Young, 89 Wn.2d at 621; Curtiss, 161 Wn. App. at 691-92.

                                                      11

        The State argues that even if error occurred, Paulson's conviction should not be

reversed even under a constitutional harmless error standard. We agree.

        The State bears the burden of showing a constitutional error is harmless. This

court finds a constitutional error harmless "only if convinced beyond a reasonable doubt

any reasonable jury would reach the same result absent the error." Easter, 130 Wn.2d

at 242.

        Paulson's statements during his initial interview with Hallifax at the time of the

arrest was untainted. Similarly, because the search of Paulson's residence was

conducted before the second interview, the fruits of the search and observations made

during that search were untainted.


         10 Paulson also relies on State v. Pinson, 183 Wn. App. 411, 416-17, 333 P.3d 528(2014); State
v. Silva, 119 Wn. App. 422, 81 P.3d 889(2003); and State v. Knapp, 148 Wn. App. 414,420, 199 P.3d
505(2009). But in all three cases, like Fuller, the defendant unequivocally exercised their right to silence
by not responding to substantive crime-related questions.

                                                  -10-
No. 74827-1-1/11


         The jury was instructed on the definition of "possession." Jury instruction 9

stated:

         Possession means having a substance in one's custody or control. It may
         be either actual or constructive. Actual possession occurs when the item is
         in the actual physical custody of the person charged with possession.
         Constructive possession occurs when there is no actual physical
         possession but there is dominion and control over the substance.

         Proximity alone without proof of dominion and control is insufficient to
         establish constructive possession. Dominion and control need not be
         exclusive to support a finding of constructive possession.

      In deciding whether the defendant had dominion and control over a
      substance, you are to consider all the relevant circumstances in the case.
      Factors that you may consider, among others, include whether the
      defendant had the ability to take actual possession of the substance,
      whether the defendant had the capacity to exclude others from possession
      of the substance, and whether the defendant had dominion and control
      over the premises where the substance was located. No single one of
      these factors necessarily controls your decision.

11 WASHINGTON PRACTICE: PATTERN JURY INSTRUCTIONS: CRIMINAL 50.03 (4th ed.

2016).

         During Paulson's initial interview, he identified his bedroom as having two

nightstands. He told Hallifax that one of the nightstands had an open safe on top of it.

Paulson told Hallifax that the he might have drugs in the second nightstand. During the

search of Paulson's residence, police found only one bedroom in the house with two

nightstands including one with an open safe on top as Paulson described. Police found

methamphetamine in the second nightstand, again, just as Paulson described. The

bedroom was also full of evidence showing Paulson's dominion and control over the

bedroom. On the bed and in the nightstand, police found mail addressed to Paulson,




                                           -11-
No. 74827-1-1/12


other documents with Paulson's name on them, and a credit card with Paulson's name

on it.

         Considering Paulson told the police exactly where to find drugs in the nightstand

in his bedroom, and that there was no evidence linking anyone else to the drugs, any

reasonable jury would have convicted Paulson of possession of the methamphetamine

even without the challenged evidence and argument related to his failure to deny the

crime. Thus, even if the State erred, the error was constitutionally harmless.

                                              III

         Paulson also asks that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. However, when a trial

court makes a finding of indigency, that finding remains throughout review "unless the

commissioner or clerk determines by a preponderance of the evidence that the

offender's financial circumstances have significantly improved since the last

determination of indigency." RAP 14.2. Here, Paulson was found indigent by the trial

court. If the State has evidence indicating that Paulson's financial circumstances have

significantly improved since the trial court's finding, it may file a motion for costs with the

commissioner.




                                           -12-
No. 74827-1-1/13


      We affirm.




WE CONCUR:
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