                                                                  FILED 

                                                              NOVEMBER 25,2014 

                                                           In the Office of the Clerk of Court 

                                                          WA State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31779-0-III
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
CARL J. PRICE,                                )
                                              )
                     Petitioner.              )

      LAWRENCE-BERREY, J. - The State may use a defendant's postarrest refusal to

answer questions if relevant for a reason other than to infer guilt. Here, defense counsel

elicited officer testimony that his client failed to answer a few questions toward the end of

a postarrest interview. Defense counsel used this evidence to support his argument that

his client was confused by a recent seizure, and that the jury should discount all evidence

of how his client behaved after the seizure. The State rebutted this by arguing that the

defendant's refusal to answer the last few interview questions was evidence that the

defendant was thinking clearly. Because the argument was proper rebuttal, we affirm.
No. 31779-0-III
State v. Price


                                          FACTS

       In the early morning hours of April 30, 2009, Ephrata Police Officers Christopher

Hufman and Jack McLauchlan observed Carl Price driving his truck in an alley behind

the Ephrata police department. After a brief conversation with Mr. Price, the officers

decided to follow him. Mr. Price failed to stop at a stop sign and then hit a curb while

turning. Officer Hufman activated his lights and initiated a traffic stop.

       Upon contact with Mr. Price, Officer Hufman noticed that Mr. Price's eyes were

watery, his pupils were dilated, and his speech was repetitive and slurred. Mr. Price was

also argumentative. Officer Hufman noticed an intermittent faint smell of alcohol coming

from the passenger compartment of the truck.

       Dispatch notified Officer Hufinan that Mr. Price's license was suspended. Officer

Hufman asked Mr. Price to step out of the truck and advised him that he was under arrest

for driving with a suspended license. Mr. Price refused to get out of the truck or tum off

the ignition. Concerned for his safety, Officer Hufman advised Mr. Price that he would

use his taser if Mr. Price did not comply. Mr. Price did not comply and the officer used

his taser. Soon afterward, Mr. Price started having seizure-like symptoms and was taken

to the hospital by ambulance.




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No. 31779-0-111
State v. Price


       While at the hospital, Officer Hufinan advised Mr. Price of his constitutional

rights, including his right to remain silent. Officer Hufman conducted a driving while

under the influence (DUI) interview of Mr. Price. The series of approximately 30

questions Officer Hufman asked were formulated by the Washington State Patrol and

found on the DUI arrest report. Mr. Price answered most of the questions, including

giving responses on how many beers he consumed and when he started drinking. Toward

the end of the questions, when asked about the time and location of his last drink and

whether his ability to drive was affected by his alcohol use, Mr. Price did not answer. Mr.

Price was issued a citation for DUI and driving with a suspended license.

       Prior to trial in district court, the court conducted a brief CrRLJ 3.5 hearing to

determine the admissibility of Mr. Price's statements. The trial court ruled that the DUI

interview was admissible in its entirety.

       At trial, Officer Hufinan testified that Mr. Price participated in the DUI interview.

The State questioned Officer Hufman about Mr. Price's responses to the questions, but

did not ask about the questions that Mr. Price did not answer. Officer Hufman also

testified that in his opinion, Mr. Price was too intoxicated to safely operate a motor

vehicle. Mr. Price objected to this opinion testimony.




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No. 31779-0-II1
State v. Price


       On cross-examination, defense counsel asked Officer Hufman about Mr. Price's

reaction to question 28, which asked where he was drinking. Officer Hufman stated that

Mr. Price acted confused and did not want to answer the question. Defense counsel

emphasized that Officer Hufman noted in the report that Mr. Price "acted" confused

rather than "played" confused. Clerk's Papers (CP) at 522. In its redirect, the State asked

Officer Hufman whether Mr. Price appeared confused in response to other questions.

Particularly when asked about question 29, the time of his last drink, Officer Hufman

testified that Mr. Price refused to answer and did not give a confused response. He

testified that Mr. Price also refused to answer question 30, regarding his ability to drive. I

Mr. Price did not object to this testimony.

       In closing arguments, the State referenced Mr. Price's DUI interview. The

prosecutor stated,

       Mr. Phelps, the defense attorney here ... I think he kind of tried to ask
       some questions maybe kind of kind indicating that ... maybe it was a
       response to the seizure, or the tasing, or some sort of medical issue created
       this confusion. But look at, look at some of the other questions here, when
       he was asked ... what kind of medicine do you take? He rattled off a list of
       vitamins and other things. [W]hen he was asked ... when was the time of
       your last drink? Well he refused to answer that question; there wasn't any
       confusion there, he didn't say ... that was in 1990 or whatever. You know,

       I We glean from our review of the record that Mr. Price did not say he refused to
answer this or any other question; rather, Mr. Price avoided the questions by either
"acting" or "playing" confused.

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No. 31779-0-111
State v. Price


       he knew what he was doing there. When he was asked "do you believe
       your ability to drive was affected by alcohol or drug usage", he refused to
       answer that question too. This wasn't ... a case of the brain being
       scrambled by that taser.

CP at 586 (some alterations in original). Mr. Price did not object to these comments

during the State's closing. Defense counsel countered:

       So you then have to decide after that point ... this man's been shot [by a
       taser], he's in convulsions, he's having seizures. And now, based on nine
       minutes of observation, [you] are supposed to decide if these officers were
       right and ifhe was affected by alcohol, and not by another condition ... not
       by tasering. And how did that all affect him? 1 would submit to you ladies
       and gentlemen that after they tasered him, and he goes into the seizures,
       everything from that point on after that nine minutes ... it's the effect of
       tasers, it's the effect of seizures, and whatever he tells them at that point is
       suspect and not credible evidence of intoxication. And that there is no
       evidence other than the nine minutes of observation that provides any
       evidence.

CP at 595-96 (some alterations in original).

       Mr. Price was found guilty of driving under the influence. He appealed his

conviction to superior court. He contended that Officer Hufman offered impermissible

opinion testimony regarding Mr. Price's ability to operate a motor vehicle. He also

contended that the State used his right to silence against him by inferring guilt from his

refusal to answer certain questions during the DUI interview. The superior court affirmed

the conviction. Mr. Price requested and was granted discretionary review by this court.

On appeal, he asserts the same issues raised in superior court.

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No. 31779-0-111
State v. Price


                                        ANALYSIS

       Prosecutorial Misconduct. Mr. Price contends that the State committed

prosecutorial misconduct by improperly commenting on his right to silence. Mr. Price

failed to object to the State's comment at trial. However, Mr. Price may raise this issue

for the first time on appeal because it amounts to a manifest error affecting a

constitutional right. State v. Romero, 113 Wn. App. 779, 786, 54 PJd 1255 (2002).

       "To establish prosecutorial misconduct, a defendant must show both improper

conduct and resulting prejudice." State v. Embry, 171 Wn. App. 714, 749, 287 PJd 648

(2012), review denied, 177 Wn.2d 1005,300 P.3d 416 (2013). "We 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." Id.

       A defendant's right against self-incrimination, or right to remain silent, is equally

protected by both the federal constitution and the Washington Constitution. State v.

Mecca Twin Theater & Film Exch., Inc., 82 Wn.2d 87, 91,507 P.2d 1165 (1973). The

right against self-incrimination prohibits the State from forcing the defendant to testify

against himself or herself. State v. Foster, 91 Wn.2d 466,473,589 P.2d 789 (1979).

When a defendant invokes'his 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



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No. 31779-0-111
State v. Price


such silence." State v. Easter, 130 Wn.2d 228,236,922 P.2d 1285 (1996). Likewise, the

State may not comment on silence by inferring guilt from a refusal to answer questions.

State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996).

       In addition to Fifth Amendment concerns, when silence is invoked in the postarrest

context "it is a violation of due process for the State to comment upon or otherwise

exploit a defendant's exercise of his right to remain silent." Romero, 113 Wn. App. at

786-87. Miranda 2 warnings provide assurance to a defendant that he or she will not be

penalized for remaining silent in spite of the State's accusations. State v. Terry, 181 Wn.

App. 880, 889, 328 P.3d 932 (2014).

      After questioning begins, it is possible for a defendant to invoke a right to silence

but the invocation of the right must be clear and unequivocal. Embry, 171 Wn. App. at

750. "[A]n invocation must be sufficiently clear 'that a reasonable police officer in the

circumstances would understand the statement to be [an invocation of Miranda rights].'"

State v. Piatnitsky, 180 Wn.2d 407, 413,325 P.3d 167 (2014) (some alterations in

original) (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 1291. Ed.

2d 362 (1994)). A brief failure to respond to an officer's question while answering others

does not establish an invocation of the right. State v. Hodges, 118 Wn. App. 668, 672-73,


      2 Miranda   v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 161. Ed. 2d 694 (1966).

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No. 31779-0-III
State v. Price


77 P.3d 375 (2003). "A defendant normally does not invoke the privilege by remaining

silent." Salinas v. Texas, _ U.S. _, 133 S. Ct. 2174, 2176, 186 L. Ed. 2d 376 (2013)

(plurality opinion).

       In State v. Bradfield, 29 Wn. App. 679, 684, 630 P.2d 494 (1981), the defendant

waived his Miranda rights and answered law enforcement's interview questions except

those pertaining to the alleged murder. At trial, a detective testified that the defendant

said he did not want to talk about the murder. ld. On appeal, the defendant contended

that the detective's testimony violated his right to silence. ld. The State argued that the

defendant did not unambiguously invoke his right to remain silent when he refused to

answer questions and continued his conversation with law enforcement. ld. at 684-85.

By indicating that he would respond to some questions and not to others, the State

maintained that the defendant selectively waived his Fifth Amendment rights. ld. at 685.

The court agreed with the State, holding that the defendant's "nonstatements" were

admissible. ld. The court ruled, "The defendant cannot be permitted to rely upon

Miranda when he attempts to toy with the police by telling [them] only facts which he

wants them to hear." ld.

       Similarly in Embry, the defendant waived his Miranda rights and answered

questions associated with the alleged crime. Embry, 171 Wn. App. at 750. However, the


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No. 31779·0-II1
State v. Price


defendant refused to answer questions that implicated others in the crime. Id. At trial, a

detective commented that the defendant made it clear that he would not cooperate or

testify against others. Id. The State commented during closing argument that the'" code

of the street'" was not to talk to police. Id. at 751. The State continued, '" Well, any

criminal, of course, committing an act won't talk to the police. That makes sense because

they are going to jail. They're going to be held accountable.'" Id. On appeal, the court

rejected the defendant's argument that the State impermissibly commented on his right to

remain silent. Id. at 748. The court held that the defendant did not clearly and

unequivocally invoke his right to silence. Id. at 751. "[W]hen a defendant does not

remain silent and instead talks to police, the State may comment on what the defendant

does not say." Id. at 750.

       Finally, in Curtiss, the defendant waived her Miranda rights and confessed to

rendering criminal assistance to covering up a murder, but denied committing the murder.

State v. Curtiss, 161 Wn. App. 673, 685·86, 250 P.3d 496 (2011). The detective

conducting the interview told the defendant that he believed that she arranged and was

present during the murder, to which the defendant tardily replied that she could not

remember. Id. at 686. At trial, the detective testified that the defendant did not react to or

deny his accusations. Id. at 691-92. During closing arguments, the State reminded the



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No. 31779-0-III
State v. Price


jury that the defendant did not deny the accusations when confronted by the detective, but

instead answered that she did not remember. Id. at 699. On appeal, the defendant

contended that the detective and the prosecutor commented on her right to remain silent.

Id. at 691,698-99. The court ruled that the defendant did not invoke her right to silence

during the interview, thus the detective's testimony and the prosecutor's statement

regarding her lack of response to certain interview questions was not improper. Id. at

692,699.

       Here, defense counsel was the first to elicit evidence of his client's silence.

Defense counsel used this evidence to argue that his client was still affected by his recent

seizure, and that the jury should discount everything his client said or did following his

seizure. The prosecution, anticipating this argument, commented on Mr. Price's silence,

not to infer guilt but, instead, as evidence that Mr. Price was thinking clearly. Because

the prosecution did not use Mr. Price's silence to infer guilt, there is no prosecutorial

misconduct. Moreover, even if we were to hold otherwise, Mr. Price's nonverbal

"confusion" is not a clear and unequivocal invocation of his right to remain silent. For

this second reason, there is no prosecutorial misconduct.

       Mr. Price relies erroneously on Easter to support his argument. In Easter, the

defendant invoked his right to silence when he did not speak to officers when questioned.


                                              10 

No. 31779-0-111
State v. Price


Easter, 130 Wn.2d at 230. The court held that the State violated the defendant's Fifth

Amendment right when the prosecutor called attention to the prearrest silence to imply

guilt. Id. at 242-43. When compared to Mr. Price's situation, the significant differences

are that the State did not use Mr. Price's silence to infer guilt, and Mr. Price did not

unequivocally invoke his right to silence.

       Admissibility ofO(flcer 's Opinion ofIntoxication. Mr. Price contends that the trial

court abused its discretion by allowing Officer Hufman's opinion testimony. The State

asked Officer Huffman, "[I]n your opinion officer, based on the training and experience,

was the defendant intoxicated to a level where he could not safely operate a motor

vehicle?" CP at 483. Mr. Price objected, and the trial court overruled his objection.

Officer Hufman responded, "In my opinion, he was too intoxicated to operate a vehicle."

CP at 483.

       A trial court's admission of evidence is reviewed for an abuse of discretion. State

v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). An abuse of discretion occurs

when the trial court's decision is manifestly unreasonable or based upon untenable

grounds or for untenable reasons. Id. (quoting State v. Powell, 126 Wn.2d 244,258, 893

P.2d 615 (1995)).




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No. 31779-0-111
State v. Price


       Generally, a witness may not testify "to his opinion as to the guilt of a defendant,

whether by direct statement or inference." State v. Black, 109 Wn.2d 336,348, 745 P.2d

12 (1987). Opinion testimony can be unfairly prejudicial because it invades the province

of the fact finder. Id. Conversely, "testimony that is not a direct comment on the

defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is

based on inferences from the evidence is not improper opinion testimony." City a/Seattle

v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). Opinion testimony that involves

crucial issues disputed for the trier of fact is admissible as long as the testimony does not

give a direct opinion on the defendant's guilt. Id. "The fact that an opinion

encompassing ultimate factual issues supports the conclusion that the defendant is guilty

does not make the testimony an improper opinion on guilt." Id. at 579.

       Washington allows a lay witness to express an opinion on the degree of

intoxication of a person when the witness had the opportunity to observe the affected

person. Id. at 580. "[W]here the testimony is supported by proper foundation, the trial

court has discretion to admit opinion testimony on the degree of intoxication in a

prosecution for driving while under the influence." Id. at 582.

       In Heatley, an officer who responded to the defendant's traffic stop testified that

the defendant was intoxicated and impaired to the extent that he could not drive safely.


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No. 3 I 779-0-II1
State v. Price


Id. at 580. The court held that the officer's testimony was admissible because the officer

did not give a direct opinion on the defendant's guilt. Id. at 579. Furthermore, the

testimony was based on the officer's experience and observations of the defendant and

was helpful to the trier of fact. Id. at 579-80.

       Here, like Heatley, the trial court did not abuse its discretion by allowing Officer

Hufman to opine that Mr. Price's level of intoxication was such that he could not safely

operate a motor vehicle. This testimony is not an improper opinion on guilt. Rather, this

testimony was supported by Officer Hufman's experience and observations of Mr. Price,

and the trial court could reasonably determine that such an opinion would be helpful to a

trier of fact. The trial court did not abuse its discretion by allowing Officer Hufman to

offer this opinion testimony.

       We affirm.

       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. 



                                            Lawrence-Berrey, J.
WE CONCUR:




                                              13 

