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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                               DIVISION ONE


              Respondent,                          No. 71654-9-1


         v.                                        UNPUBLISHED OPINION

GARY TIMOTHY MCCALLUM,

              Appellant.                           FILED: June 29, 2015


       Dwyer, J. — Following a jury trial, at which he did not testify, Gary

McCallum was convicted of assault in the second degree. On appeal, McCallum

contends that the trial court was required, on its own initiative, to instruct the jury

that McCallum was not required to testify and that the jury was not permitted to

draw a negative inference from his choice not to testify. Because the law

imposes no such duty on the trial judge, we affirm.

                                            I


       McCallum was charged by second amended information with one count of

assault in the second degree and one count of malicious mischief. A jury trial

commenced on October 25, 2010. McCallum did not testify. The State

submitted a packet of 17 proposed jury instructions and a verdict form. The

defense did not propose any jury instructions or take exception to any of the
No. 71654-9-1/2



instructions that were proposed by the State. The court gave the 17 instructions

that were proposed by the State.

       The jury returned a guilty verdict on the second degree assault charge and

a not guilty verdict on the malicious mischief charge. McCallum was sentenced

to 5 months in custody with work release, if eligible.

                                          II


       When a defendant does not testify at trial, he may request, and the court

must then give, an instruction to the jury directing the jury to not draw an adverse

inference from the absence of his testimony. McCallum contends that, even

absent a request from him, the trial court was constitutionally required to give

such an adverse inference instruction to the jury. His contention is contrary to

both federal and state law.

       This issue is long-settled under federal law. In Carter v. Kentucky, the

Supreme Court held that "a state trial judge has the constitutional obligation,
upon proper request, to minimize the danger that the jury will give evidentiary
weight to a defendant's failure to testify" by giving an adverse inference

instruction. 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L Ed. 2d 241 (1981)

(emphasis added). Throughout its opinion, the Court explicitly limited the trial
court's obligation to situations in which an adverse inference instruction was
requested. For example, in explaining its purposefor accepting review of the
case, the Court stated, "We granted certiorari to consider the petitioner's

contention that a defendant, upon request, has a right to such an instruction."

Carter, 450 U.S. at 289-90 (emphasis added). Furthermore, after discussing
No. 71654-9-1/3



relevant precedent, the Court concluded, "The principles enunciated in our cases

. . . lead unmistakably to the conclusion that the Fifth Amendment requires that a

criminal trial judge must give a 'no-adverse-inference' jury instruction when

requested by a defendant to do so." Carter, 450 U.S. at 300 (emphasis added).

The Court also related the defendant's right not to testify to the trial court's

obligation to protect that right upon proper request, stating, "A trial judge has a

powerful tool at his disposal to protect the constitutional privilege—the jury
instruction—and he has an affirmative constitutional obligation to use that tool

when a defendant seeks its employment." Carter, 450 U.S. at 303 (emphasis

added). Finally, the Court stated in summary that, "the failure to limit the jurors'
speculation on the meaning of [a defendant's] silence, when the defendant
makes a timely request that a prophylactic instruction be given, exacts an
impermissible toll on the full and free exercise of the privilege." Carter, 450 U.S.
at 305 (emphasis added).

       Three years later, the Supreme Court reiterated that, in order to be entitled
to an adverse inference instruction, a defendant must "adequately invoke[] his

substantive right to [such] jury guidance." James v. Kentucky, 466 U.S. 341,
348, 104 S. Ct. 1830, 80 L. Ed. 2d 346 (1984). In so holding, the Court
specifically cited to Carter, which it repeatedly cited for the proposition that a trial
court is required to give an adverse inference instruction only if the defendant
makes a timely request. James, 466 U.S. at 342, 344, 349 ("In Carter... we
 held that a trial judge must, if requested to do so, instruct the jury not to draw an
 adverse inference from the defendant's failure to take the stand           In Carter we



                                          -3
No. 71654-9-1/4



held that, in order fully to effectuate the right to remain silent, a trial judge must

instruct the jury not to draw an adverse inference from the defendant's failure to

testify if requested to do so. . . . Carter holds that if asked to do so the trial court

must tell the jury not to draw the impermissible inference." (emphasis added)).1

       State law accords with federal law on this issue. See State v. Pavelich,

153 Wash. 379, 380, 279 P. 1102 (1929) ("In this case, ... no request was made

for any such instruction. Appellants merely excepted to the failure of the court of

its own motion to give such an instruction. This was not sufficient to save such

error."); see also State v. Jeffries. 105 Wn.2d 398, 423, 717 P.2d 722 (1986)

(extending the rule—that the defendant must request an adverse inference
instruction—to the penalty phase of an aggravated murder prosecution); State v.

Goldstein. 65 Wn.2d 901, 903-04, 400 P.2d 368 (1965) ("[T]he court is not

required to give such an instruction unless requested . . . ."); State v. Zupan. 155
Wash. 80, 97, 283 P. 671 (1929) ("Appellant complains that the court did not

instruct the jury that no inference of guilt should arise against appellant because
of his failure to testify. The courtwas not required to give such instruction unless

requested.").




        1McCallum purports to rely on Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S. Ct.
1091, 55 L. Ed. 2d 319 (1978), in which the Supreme Court held that "thegiving of [an adverse
inference] instruction over the defendant's objection does not violate the privilege against
compulsory self-incrimination." However, the Court also stated therein that "each State is, of
course, free to forbid its trial judges from [giving a cautionary adverse inference instruction over a
defendant's objection] as a matter ofstate law." Lakeside, 435 U.S. at 340. Because the
Lakeside Court made clear that a trial court may be prohibited by lawfrom giving the juryan
adverse inference instruction absent a proper request by the defendant, that case cannot be read
to support McCallum's contention that the trial court was constitutionally required, absent any
request from him, to give the jury an adverse inference instruction.
No. 71654-9-1/5



      A trial court is not required to give an adverse inference instruction absent

a timely request by the defendant. Here, there was no such request.

Accordingly, there was no error.

      Affirmed.


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We concur:




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