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 8UPREME COURT, ITATIOI._..._

-I        DATE   JUN 0 4 2015~

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      IN THE SUPREME COURT OF THE STATE OF WASHINGTON


     STATE OF WASHINGTON,                         )
                                                  )
                     Respondent,                  )               No. 89976-2
                                                  )
     v.                                           )                 En Bane
                                                  )
     ROBERTEUGENEBARR~                            )
                                                  )     Filed     JUN 0 4 2015
                     Petitioner.                  )
                                                  )


             WIGGINS, J.-Robert Barry appeals his conviction on two counts of child

 molestation, claiming that the trial court's instruction in response to a jury question

 violated his Fifth Amendment and Sixth Amendment rights under the United States

 Constitution. The jury asked the court whether it may consider "observations of the

 defendant's actions-demeanor during the court case" as "evidence." In response, the

 trial court instructed the jury that "[e]vidence includes what you witness in the

 courtroom." All parties agree that the record contains no references whatsoever to

     Barry's in-court demeanor and so we have no way of determining what aspects of

     Barry's "demeanor" drew the jury's attention and whether the jury's observations were

     favorable or unfavorable to Barry. We hold that the trial court's instruction did not

     amount to constitutional error; we instead apply the nonconstitutional error standard

     and affirm.
State v. Barry (Robert), No. 89976-2


      The Fifth Amendment does not extend to the jury's generic reference to

"actions-demeanor," and the Sixth Amendment does not transform all evidentiary

errors into errors of constitutional magnitude. Consequently, no constitutional error

occurred. Under the standard for nonconstitutional error, the record's silence on

Barry's demeanor makes it impossible to determine that Barry was prejudiced. For

these reasons, we affirm.

                                            FACTS

       The State charged Barry with two counts of child molestation in the first degree.

During its deliberations, the jury sent a written question to the court: "Can we use as

'evidence' for deliberations our observations of the defendant's actions-demeanor

during the court case?" The trial judge summoned counsel for both parties and

informed them of the question. Neither the court nor counsel suggested anything that

the jury may have observed that could have prompted the question. The record is

devoid of any reference to the defendant's in-court demeanor and conduct.

       After some discussion regarding the proper response to the jury's question, the

court noted that it had read case law stating that evidence includes what is witnessed

in the courtroom. 1 Defense counsel initially suggested that "perhaps the best answer

is to just simply quote that language: 'The evidence includes what they witness in the



1 Most likely, the trial court was referring to the North Carolina case State v. Brown, 320 N.C.
179, 358 S.E.2d 1, 15 (1987). The trial court stated that it had examined a case involving "a
prosecutor's argument that called attention to a defendant's stoic appearance, suggesting
that the defendant neither felt, nor indicated contrition for his or her act." The quoted language
appears almost word-for-word in Brown. See id. at 14. The Brown court also announced a
rule closely tracking the trial court's eventual response to the jury's question in this case. See
id. at 15 ('[E]vidence is not only what uurors] hear on the stand but what they witness in the
courtroom.").

                                                2
State v. Barry (Robert), No. 89976-2


courtroom."' The court rephrased that into "[e]vidence includes what you witness in

the courtroom." Defense counsel then reconsidered, expressing concern that the jury

might interpret that answer as inviting the jury to take the defendant's "actions and

demeanor as testimony." Nonetheless, the trial court ultimately decided to provide its

proposed response to the jury. Defense counsel objected on the record. The jury

convicted Barry on one of the two counts; it was unable to reach a verdict on the

remaining count. Barry appealed.

       The Court of Appeals affirmed. State v. Barry, 179 Wn. App. 175, 317 P.3d 528

(2014). While the Court of Appeals noted that the trial court's instruction was "improper

in its overbreadth," id. at 178, it rejected Barry's constitutional arguments and held that

the instruction was a nonconstitutional evidentiary error-i.e., the trial court let the jury

consider something that was not admissible evidence. /d. at 181-82. Under the

standard for this type of error, Barry had to show prejudice in order to obtain reversal.

/d. The court held that Barry could not show such ·prejudice because the record

contained no references to the defendant's conduct and behavior during trial. /d. at

182. We granted Barry's petition for review. 180 Wn.2d 1021, 328 P.3d 903 (2014).

                                STANDARD OF REVIEW

       Our standard of review depends on whether the court's error2 was constitutional

or nonconstitutional. The Supreme Court held in Chapman         v.   California that "before a

federal constitutional error can be held harmless, the court must be able to declare a

belief that it was harmless beyond a reasonable doubt." 386 U.S. 18, 24, 87 S. Ct.



2 As explained below, we accept for the purposes of this opinion the State's concession that
the court's instruction was erroneous.

                                             3
State v. Barry (Robert), No. 89976-2


824, 17 L. Ed. 2d 705 (1967) (emphasis added). This stringent standard can be met

if there is overwhelming evidence of the defendant's guilt that is not tainted by the

error. State v. Nist, 77 Wn.2d 227, 233-34, 461 P.2d 322 (1969) (citing Harrington v.

California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969)). The State bears

the burden of demonstrating harmlessness. State v. Coristine, 177 Wn.2d 370, 380,

300 P.3d 400 (2013) (citing Chapman, 386 U.S. at 24 ).

       "Where the error is not of constitutional magnitude, we apply the rule that 'error

is not prejudicial unless, within reasonable probabilities, had the error not occurred,

the outcome of the trial would have been materially affected."' State v. Smith, 106

Wn.2d 772, 780, 725 P.2d 951 (1986) (emphasis added) (quoting State v.

Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Under this nonconstitutional

harmless error standard, "an accused cannot avail himself of error as a ground for

reversal unless it has been prejudicial." Cunningham, 93 Wn.2d at 831. In assessing

whether the error was harmless, we must measure the admissible evidence of the

defendant's guilt against the prejudice, if any, caused by the inadmissible evidence.

State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).

       Barry argues, relying on State v. Wanrow, 88 Wn.2d 221, 237-38, 559 P.2d 548

(1977), that all "instructional errors" are presumed prejudicial and subject to an

intermediate standard of review. This is incorrect. We presume prejudice only when

the erroneous instruction was "'given on behalf of the party in whose favor the verdict

was returned."' /d. at 237 (quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d

191 (1970)). This requirement l1as been an essential component. of this presumption




                                            4
State v. Barry (Robert), No. 89976-2


from its inception. 3 We noted in State v. O'Hara that "under Wanrow, situations could

exist where a defendant or the trial court propose an erroneous jury instruction and

the instruction is not presumptively prejudicial." 167 Wn.2d 91, 103, 217 P.3d 756

(2009). Barry presents precisely this situation. It was defense counsel that first

suggested, during a back-and-forth discussion among defense counsel and the court,

that the court instruct the jury that "evidence includes what you witness in the

courtroom." The State agreed that the instruction was proper, but neither party

proposed it nor advocated for the language that the court ultimately chose. The

instruction thus was not given on the State's behalf, and we therefore do not presume

prejudice.

                                         ANALYSIS

       We reject Barry's constitutional arguments and apply the nonconstitutional

harmless error standard. Under that standard, the record's silence regarding Barry's

in-court demeanor is fatal to his appeal.

       As noted above, the parties agree that the record lacks any evidence of the

defendant's demeanor. Thus, neither party can "prove" one way or another whether

the error was prejudicial. The burden, then, is the decisive issue, and that depends on



3  The provenance of this rule can be traced as follows: Wanrow quoted from Golladay, 78
Wn.2d at 139, which, in turn, quoted State v. Britton, 27Wn.2d 336,341, 178 P.2d 341 (1947),
which quoted 3 AM. JUR. Appeal and Error§ 949, at 511 (1936), which cited to an American
Law Reports annotation covering the Missouri civil case Larsen v. Webb, 332 Mo. 370, 58
S.W.2d 967, 971 (1932). Larsen cited to Moloney v. Boatmen's Bank, 288 Mo. 435, 232 S.W.
133, 140 (1921 ), which appears to be the original source of the rule. Moloney states, "When
an erroneous instruction is given and the trial results in favor of the party at whose instance
it was given, the presumption is that the error was prejudicial." /d. In Moloney and all of the
other above-cited iterations of this rule, the presumption of prejudice attaches only if an
erroneous instruction was given at the behest or on behalf of the prevailing party.             ·

                                               5
State    v. Barry (Robert), No. 89976-2

whether the error was nonconstitutional (burden on defendant to show prejudice) or

constitutional (burden on prosecution to show harmlessness).

          The State has conceded that the trial court's instruction was erroneous. We

accept this concession for the purposes of this opinion and therefore do not reach

whether a jury can ever consider a nontestifying defendant's demeanor or whether

evidence may, in some circumstances, include other juror observations made during

the course of a trial. 4

    I.    Fifth Amendment

          The trial court's instruction did not violate the Fifth Amendment's proscription

against self-incrimination. 5 Courts have almost unanimously held that the Fifth

Amendment does not protect evidence of a defendant's actions or demeanor

(hereinafter, demeanor evidence), 6 a conclusion consistent with Fifth Amendment

jurisprudence
          .   and the plain meaning of "demeanor." Courts
                                                        .
                                                          have determined that


4 We note, however, that a prosecutor who comments on the defendant's demeanor is
"strolling in a minefield" strewn with both constitutional and evidentiary hazards. Borodine v.
Oouzanis, 592 F.2d 1202, 1209 (1st Cir. 1979). The same holds true for courts that make
rulings or issue instructions inviting the jury to consider a nontestifying defendant's demeanor.
Rather than testing the limits of our holding in this case, both parties and courts would be
well-advised to avoid drawing the jury's attention to subject matter outside the scope of
admitted exhibits and the testimony of witnesses.
5 "No person shall be ... compelled in any criminal case to be a witness against himself .... "
U.S. CONST. amend. V.
6 For our purposes, there is no practical distinction between "actions" and "demeanor"
because the Fifth Amendment inquiry is the same regardless of the terminology used-i.e., a
defendant's conduct is subject to the Fifth Amendment if that conduct is "testimonial." See,
e.g., State v. Easter, 130 Wn.2d 228, 243, 922 P.2d 1285 (1996) (Fifth Amendment does not
"prevent[] the State from introducing pre-arrest evidence of a non-testimonial nature about
the accused, such as physical evidence, demeanor, conduct, or the like"); Pennsylvania v.
Muniz, 496 U.S. 582, 595 n.9, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990) (the "definition [of
'testimonial'] applies to both verbal and nonverbal conduct"). Because there is no practical
difference between "demeanor" and "actions" for Fifth Amendment purposes, and because
the parties' briefs focus on the term "demeanor," we use to "demeanor" as shorthand for both
terms.

                                                6
State v. Barry (Robert), No. 89976-2


consideration of demeanor evidence is constitutionally barred only if the demeanor is

testimonial, or if it is merely the demeanor accompanying a defendant's silence or

failure to testify. See United States     v.   Clark, 69 M.J. 438, 444-45. (C.A.A.F. 2011 ).

There is no indication in the record that the question regarding Barry's courtroom

demeanor was an oblique reference to testimonial conduct or Barry's failure to testify.

Consequently, the trial court's response to the jury's inquiry did not violate Barry's Fifth

Amendment rights.

   A. "Demeanor" is not equivalent to "silence"

       We reject Barry's principal Fifth Amendment argument-that the court's

response to the jury's question implicated the defendant's right to remain silent. In its

general instructions, the trial court instructed the jury that "the fact that the defendant

has not testified cannot be used to infer guilt or prejudice against him in any way," and

that its instructions are to be taken as a whole. A jury is presumed to follow the court's

instructions, State   v.   Foster, 135 Wn.2d 441,472,957 P.2d 712 (1998), and the record

presents no indication that the jury failed to heed the court's instruction regarding the

defendant's failure to testify in this case.

       Barry argues, however, that because the court's instruction in response to the

jury's question invited the jury to consider the defendant's demeanor, that instruction

conflicted with its earlier instruction regarding the defendant's choice not to testify. But

the trial court's instructions conflict only if we view a generic reference to the

defendant's demeanor as equivalent to (or a proxy for) a comment on the defendant's

failure to testify. The relevant case law and the plain meaning of "demeanor" do not




                                                 7
State v. Barry (Robert), No. 89976-2


support such a conclusion-a bare reference to "demeanor," without more, is not

tantamount to impermissible commentary on a defendant's failure to testify.

       Griffin v. California established that the Fifth Amendment bars the prosecution

from commenting on a defendant's failure to testify and forbids the court from

instructing the jury that such silence is evidence of guilt. 380 U.S. 609, 609-15, 85 S.

Ct. 1229, 14 L. Ed. 2d 106 (1965). While we have never adopted a specific rule

governing when a trial court's instruction runs afoul of Griffin, we have examined the

issue in the context of prosecutorial comments on a defendant's silence. Courts

consider two factors when assessing whether a prosecutorial comment impermissibly

comments on the defendant's silence: (1) "whether the prosecutor manifestly intended

the remarks to be a comment on" the defendant's exercise of his right not to testify

and (2) whether the jury would '"naturally and necessarily"' interpret the statement as

a comment on the defendant's silence. State        v.   Crane, 116 Wn.2d 315, 331, 804 P.2d

10 (1991) (quoting State    v.   Crawford, 21 Wn. App. 146, 152, 584 P.2d 442 (1978)). 7

       The trial court's instruction in this case meets neither prong of this test. The

instruction plainly does not implicate the first part of the test: the prosecution never

commented on the defendant's in-court conduct and the trial court clearly did not


7 Our courts have stated this test as conjunctive, requiring both a showing of "manifest intent"
by the prosecutor and a showing that the statement would "naturally and necessarily" be
taken as a comment on silence. See State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008)
(quoting Crane, 116 Wn.2d at 331 ). Other courts uniformly utilize a disjunctive test, however,
requiring a showing of only one element or the other. See, e.g., United States v. Robinson,
651 F.2d 1188, 1197 (6th Cir. 1981) (citing United States v. Rochan, 563 F.2d 1246, 1249 (5th
Cir. 1977)); Brown v. United States, 370 F.2d 874, 876 (9th Cir. 1966). The cases that first
established this test support a disjunctive reading. See Morrison v. United States, 6 F.2d 809,
811 (8th Cir. 1925); Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955). In this case,
we need not reach whether the test is conjunctive or disjunctive because, for the reasons
stated below, the trial court's instruction satisfies neither part of the test.

                                               8
State v. Barry (Robert), No. 89976-2


intend for its instruction to be a comment on the defendant's silence. Consequently,

this case involves no "manifest intent" to consider the defendant's failure to testify.

       Likewise, the plain meaning of "demeanor" and case law examining demeanor

evidence suggests that a generic reference to demeanor cannot be construed as

naturally and necessarily referring to the defendant's failure to testify. The plain

meaning of "demeanor" encompasses behavior extending well beyond mere silence

or nonresponsiveness. Webster's defines "demeanor" as "behavior toward others :

outward manner : CONDUCT[ 8l" or, alternatively, "BEARING, MIEN : facial appearance."

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 599 (2002). The American Heritage

Dictionary provides a similar definition-"[t]he way in which a person behaves;

deportment"-and directs readers to the entry for "bearing" for a list of synonyms. THE

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 496 (3d ed. 1994). Other

suggested synonyms include "behavior," ROGEr's II THE NEW THESAURUS 299

(expanded ed. 1997), as well as "manner" and "comportment." THE RANDOM HousE

DICTIONARY OF THE ENGLISH LANGUAGE 529 (2d ed. 1987). While one may argue

whether the above definitions encompass testimonial communications-an issue

discussed below-they clearly demonstrate that demeanor is far more than a mere

proxy for silence.

       Courts examining the relationship between demeanor and a defendant's right

to silence have reached the same conclusion. In United States v. Ve!arde-Gomez, the

Ninth Circuit recognized that commenting on "demeanor" is distinct from commenting


8 The small capital letters in the Webster's quotations indicate cross-references to
synonymous words. WEBSTER's, supra, at 18a (note 16.2).

                                             9
State v. Barry (Robert), No. 89976-2


on "silence," with only the former being permissible under the Fifth Amendment. 269

F.3d 1023, 1030-31 (9th Cir. 2001 ); see also State v. Mauro, 159 Ariz. 186, 766 P.2d

59, 70-71 (1988) ("The subject of the prosecutor's inquiry was defendant's demeanor,

not his silence. Such an inquiry is a permissible one."); United States v. Elkins, 77 4

F.2d 530, 537-38 (1st Cir. 1985) (oblique references to a defendant's silence cannot

be justified by characterizing them as "demeanor" evidence). In cases where a

statement does not explicitly refer to the defendant's silence, the court must examine

"the nature of the statement and the context in which it was offered ... to determine

the presence of error." Elkins, 774 F.2d at 537. 9

       Here, there is no indication that when the jury asked the court if it could consider

the defendant's "demeanor," it really was thinking about the defendant's silence or

choice not to testify. Moreover, the connection of "demeanor" with "actions" in the jury's

question strongly suggests that the jury was thinking of something more affirmative

than mere silence. The trial court's instruction does not naturally and necessarily refer

to the defendant's silence.




9 Admittedly, the line between commenting on "demeanor" and commenting on "silence" can
become blurred when speechlessness is a key aspect of the demeanor being described. See
Cunningham v. Perini, 655 F.2d 98, 100 (6th Cir. 1981) (no Fifth Amendment violation when
the prosecutor rhetorically asked the jury, '"Was there any indignation manifested here or did
he just sit there and stare,"' while watching a witness testify); Christenson v. State, 261 Ga.
80, 402 S.E.2d 41, 49-50 (1991) (prosecutor's comment that the defendant "sat right there
where he is right now and never moved. Never shed a tear. Never got misty eyed ..."was a
comment on demeanor rather than silence). Regardless, the jury question that we are tasked
with examining in this case cannot plausibly be read as a reference to the defendant's failure
to testify.

                                              10
State v. Barry (Robert), No. 89976-2


      The trial court's instruction does not meet either prong of the Crane test. \Ne

therefore reject Barry's attempt to read the court's answer as an instruction to the jury

that it may consider the defendant's silence as evidence.

   B. The jury question's generic reference to "demeanor" does not implicate
      "testimonial" conduct

       We also hold that demeanor is not inherently testimonial and that a generic

reference to the defendant's "actions-demeanor" therefore does not implicate the Fifth

Amendment Fifth Amendment jurisprudence requires courts to examine whether the

challenged words or conduct are "of a testimonial or communicative nature."

Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).

The Supreme Court holds that "in order to be testimonial,                  an accused's

communication must itself, explicitly or implicitly, relate a factual assertion or disclose

information." Doe v. United States, 487 U.S. 201, 210, 108 S. Ct. 2341, 101 L. Ed. 2d

184 (1988) .. The Fifth Amendment applies to nonverbal conduct if the conduct

"contains a testimonial component" by "reflect[ing] the actor's communication of his

thoughts to another." Pennsylvania v. Muniz, 496 U.S. 582, 595 n.9, 110 S. Ct.2638,

110 L. Ed. 2d 528 (1990). In this sense, '"[a] nod or head-shake is as much a

"testimonial" or "communicative" act ... as are spoken words."' /d. (quoting Schmerber
                   .                                                 .

v. California, 384 U.S. 757, 761 n.5, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)); see also

State v. Paschall, 182 Wash. 304, 307, 47 P.2d 15 (1935) ("We can see no difference

in pointing at the appellant ... and in mentioning his name. The gesture may be as

eloquent as the spoken word-and as effective.").




                                            11
State v. Barry (Robert), No. 89976-2


       We have previously held that demeanor is not inherently testimonial. In State

v. Easter, 130 Wn.2d 228, 241, 922 P.2d 1285 (1996), a defendant raised a Fifth

Amendment challenge to a police officer's testimony that the defendant "did not

answer and looked away without speaking" in response to police questioning. We held

that this testimony violated Easter's right to silence but also stated that "[n]othing in

our conclusion ... prevents the State from introducing pre-arrest evidence of a non-

testimonial nature about the accused, such as physical evidence, demeanor, conduct,

or the like." /d. at 243. This accords with the holdings of other courts examining

demeanor evidence under the Fifth Amendment. See, e.g., Christenson v. State, 261

Ga. 80, 402 S.E.2d 41, 50 (1991) ("Comments based on courtroom observation of a

defendant's demeanor do not infringe on the defendant's Fifth Amendment rights.");

Borodine v. Oouzanis, 592 F.2d 1202, 1209 (1st Cir. 1979) (comments that draw

attention to a defendant's demeanor do not, without more, implicate the Fifth

Amendment); Bates v. Lee, 308 F. 3d 411, 421 (4th Cir. 2002) ("[P]rosecutorial

comments about the lack of remorse demonstrated by a defendant's demeanor during

trial do not violate a defendant's Fifth Amendment right not to testify."). On the other

hand, demeanor can be testimonial when the demeanor contains a communicative

element, as in the case of nods and headshakes. Muniz, 496 U.S. at 595 n.9; Clark,

69 M.J. at 444-45.

       The rule that emerges from these cases is that while demeanor evidence is not

inherently testimonial, certain nonverbal conduct that forms part of a defendant's

demeanor might be testimonial. "[N]onverbal conduct contains a testimonial

component whenever the conduct reflects the actor's communication of his thoughts

                                            12
State v. Barry (Robert), No. 89976-2


to another." Muniz, 496 U.S. at 595 n.9. If an accused is compelled "to communicate

an express or implied assertion of fact or belief, the suspect confronts the 'trilemma'

of truth, falsity, or silence, and hence the response . . . contains a testimonial

component." /d. at 597 (footnote omitted).

       Applying that definition to the facts of this case, we hold that the jury's question

referencing the defendant's "actions-demeanor" does not implicate testimonial

conduct. Ordinarily, a person's posture, a person's body language, and other aspects

of his outward manner do not require that person to confront the Muniz trilemma of

truth, falsity, or silence. And while facial expressions and body language might reveal

someone's "state of mind" in the most general sense, they do not communicate

specific "factual assertions" or "thoughts." See, e.g., id.; Doe, 487 U.S. at 213.

       For these reasons, the generic "actions-demeanor" mentioned in the jury's

question are not testimonial. Likewise, for the reasons stated in the preceding section,

the bare reference to "actions-demeanor" did not constitute improper commentary on

the defendant's silence. Consequently, the reference to demeanor does not implicate

the Fifth Amendment.

       Justice Johnson's dissent accuses us of "stray[ing] from controlling precedent,"

relying most heavily on United States   v.   Schuler, 813 F.2d 978 (9th Cir. 1987). Dissent

at 2, 4-6. While we consider federal appellate cases for their persuasive effect, only

decisions of the United States Supreme Court are controlling on this court. In any

event, Schuler, like the other cases on which the dissent relies, is quite different from

the case before us. Most significantly, Schulers conclusion that the prosecutor's

comment violated the Fifth Amendment was rooted in that amendment's due process

                                              13
State v. Barry (Robert), No. 89976-2


clause, not its privilege against self-incrimination. The Fifth Amendment's due process

clause has no application to the states. E.g., Bingue v. Prunchak, 512 F.3d 1169, 1174

(9th Cir. 2008). 10 Thus, Schuler's holding has no bearing on Barry's Fifth Amendment

argument.

       Moreover, the prosecutor in Schuler commented in closing argument on the

defendant's demeanor and specifically invited the jury to draw a negative inference

from that demeanor. Schuler, 813 F.2d at 979. No one in this case commented on the

defendant's demeanor during the trial. Even when the jury submitted its question, no

one in the courtroom offered any suggestion as to what the jury might have observed

about the defendant's demeanor, either positively or negatively. 11 Schuler thus offers

us no guidance on how to assess the jury question at issue in this case.

       For these reasons, we reject Barry's Fifth Amendment argument.

 II.   Sixth Amendment

       We reject Barry's Sixth Amendment argument as well. Barry asserts that the

trial court's response to the jury question violated his Sixth Amendment right to a

verdict that rests "solely on the basis of the evidence introduced at trial." Barry never

specifies, however, the clause of the Sixth Amendment that includes the right he



10 The Fourteenth Amendment's almost identically worded due process clause does apply to
the states. E.g., Betts v. Brady, 316 U.S. 455, 462, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942),
overruled on other grounds by Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.
2d 799 (1963). We decline to decide this case on due process grounds, however, because
Barry did not raise due process in his Court of Appeals brief and provided no due process
analysis in his filings with this court. See note 12, infra.
11 The dissent speculates that the jury's question was somehow connected to the superior

court's pretrial admonition to the defendant and members of his family that they refrain from
displays of emotion during the trial. Dissent (Johnson, J.) at 5-6. The connection between this
admonition and the jury's question is pure conjecture.

                                              14
State v. Barry (Robert), No. 89976-2


asserts, and no portion of the Sixth Amendment's text suggests such a right. We

generally consider a constitutional argument inadequate if the argument's proponent

cites only to general constitutional ideas without specific citations and support. RAP

1 0.3(a)(6); see also In re Recall of Washam, 171 Wn.2d 503, 515 n.5, 257 P.3d 513

(2011) ("[T]he charges were not concise. As [Washam] devotes no substantial

argument to the claim, we do not reach it."). Moreover, adopting the rule Barry asserts

would run counter to our long-standing rule that evidentiary errors are not

presumptively reversible or prejudicial. See, e.g., State       v. White,   72 Wn.2d 524, 531,

433 P.2d 682 (1967). 12

       The Sixth Amendment provides:

       In all criminal prosecutions, the accused shall enjoy the right to a speedy
       and public trial, by an impartial jury of the State and district wherein the
       crime shall have been committed, which district shall have been

12 Significantly, Barry has not asserted that the instruction violated his right to due process
under the Fourteenth Amendment to the United States Constitution. Indeed, the terms "due
process" and "Fourteenth Amendment" appear nowhere in Barry's Court of Appeals brief. His
petition for review makes three passing references to "due process," but even there, he never
mentions the Fourteenth Amendment and he never cites authority stating that due process
includes a right to a verdict based solely on evidence. Nor does Barry offer any analysis
whatsoever of due process jurisprudence. To demonstrate a due process violation outside
the specific guarantees enumerated in the federal Bill of Rights, one must show that the
claimed error violated principles offundamental fairness. Dowling v. United States, 493 U.S.
342, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990). Such principles are recognized only if they are
"'fundamental conceptions of justice which lie at the base of our civil and political institutions,
and which 'define the community's sense of fair play and decency."' /d. at 353 ((citations and
internal quotation marks omitted) (quoting United States v. Lovasco, 431 U.S. 783, 790, 97
S. Ct. 2044, 52 L. Ed. 2d 752 (1977)); see also State v. lrby, 170 Wn.2d 874,881,246 P.3d
796 (2011) (under the Fourteenth Amendment, the defendant's presence during proceedings
is a condition of due process only "'to the extent that a fair and just hearing would be thwarted
by his absence"' (quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S. Ct. 330, 78
L. Ed. 674 (1934), overruled in part on other grounds sub nom. Malloy v. Hogan, 378 U.S. 1,
84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964))). Here, the parties' briefing supplies us with no
analysis of any of these due process principles with respect to a jury's inside-the-courtroom
observations. In the absence of briefing and argument by the parties, we decline to wade into
these constitutional waters and decide this case on due process grounds.


                                                15
State   v. Barry (Robert), No. 89976-2


        previously ascertained by law, and to be informed of the nature and
        cause of the accusation; to be confronted with the witnesses against him;
        to have compulsory process for obtaining witnesses in his favor, and to
        have the assistance of counsel for his defence.

The right to a verdict based solely on evidence presented at trial cannot readily be

inferred from the right to a speedy trial,   a public trial,   an impartial jury, a jury of peers,

notice of charges, confrontation of witnesses, 13 compulsory process, or assistance of

counsel. Thus, the plain language of the Sixth Amendment does not suggest the

existence of a constitutional right to an evidence-based verdict.

         Nor does the case law cited by Barry clarify his constitutional source. Barry

cites Tay/orv. Kentucky, 436 U.S. 478,485, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978),

as holding that defendants have a right to a verdict based "solely on the basis of the

evidence introduced at trial." But Taylor never once mentions the Sixth Amendment.

Moreover, the context in which the quoted language from Taylor appears suggests a

far narrower principle: "This Court has declared that one accused of a crime is entitled

to have his guilt or innocence determined solely on the basis of                   t~e   evidence

introduced at trial, and not on grounds of official suspicion, indictment, continued

custody, or other circumstances not adduced as proof at trial." /d. (emphasis added).

         This context is vital. Taylor dealt with a trial court's failure to instruct the jury on

the presumption of innocence in a case where the prosecutor noted in his opening

statement that the accused had already been arrested and indicted by a grand jury




13 Moreover, the Supreme Court has held that the confrontation clause only applies to
testimonial hearsay. Davis v. Washington, 547 U.S. 813, 823-24, 126 S. Ct. 2266, 165 L. Ed.
2d 224 (2006). For the reasons stated above, demeanor is· not inherently testimonial. Thus,
the jury's generic question does not implicate the confrontation clause.

                                                16
State v. Barry (Robert), No. 89976-2


and "linked [the accused] to every defendant who turned out to be guilty and was

sentenced to imprisonment" in his closing argument. /d. at 486-88. The Taylor Court's

concern was not that a defendant would be judged based on inadmissible evidence

but rather based on inherently prejudicial circumstances that can never be evidence

at all, such as "official suspicion, indictment, [or] continued custody." /d.· at 485. The

prosecution brought several such circumstances to the jury's attention in Taylor. That,

combined with the trial court's "skeletal" instructions, created a danger "that the jury

would convict petitioner on the basis of those extraneous considerations rather than

the evidence introduced at trial." /d. at 487-88.

         The Supreme Court cautioned against efforts to read Taylor broadly in Kentucky

v.   Whorton, which clarified that Taylor "was expressly limited to the facts." 441 U.S.

786, 789, 99 S. Ct. 2088, 60 L. Ed. 2d 640 (1979) (citing Taylor, 436 U.S. at 490). No

subsequent Supreme Court decision or any decision from this court reads Taylor as

establishing the broad rule that Barry asserts. As the Fifth Circuit United States Court

of Appeals held, "Taylor and Williams do not transform any reference to matters not in

evidence into a Fifth Amendment violation." United States      v.   Mendoza, 522 F.3d 482,

493 (5th Cir. 2008).

         Justice Johnson's dissent takes up Barry's argument that the Fifth and Sixth

Amendments guarantee that any verdict must be based on evidence presented at

trial. Dissent at 6. The dissent relies on cases in which the jury learned unadmitted

information outside of the courtroom. Turner     v.   Louisiana, 379 U.S. 466, 467-69, 85

S. Ct. 546, 13 L. Ed. 2d 424 (1965) (jurors were sequestered by and in the company

of sheriff's deputies; "[t]he deputies ate with them, conversed with them, and did

                                            17
State v. Barry (Robert), No. 89976-2


errands for them"; two of the deputies were critical witnesses during the trial); ltvin v.

Dowd, 366 U.S. 717, 719-20, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) Uurors were

aware of and influenced by extensive pretrial publicity adverse to the defendant);

Mattox   v.   United States, 146 U.S. 140, 142-43, 13 S. Ct. 50, 36 L. Ed. 917 (1892)

(bailiff told the jurors that defendant was guilty of several murders and gave jurors a

newspaper article discussing the case); United States           v.   Noushfar, 78 F.3d 1442,

1444-45 (9th Cir. 1996) (surveillance tapes that never had been played in court were

sent into the jury room when the jurors retired to deliberate); United States       v.   Perkins,

748 F.2d 1519, 1531-32 (11th Cir. 1984) Uuror concealed his knowledge about the

defendant during voir dire and disputed some of the defense evidence during

deliberations ). 14 The dissent's reliance on these cases is misplaced. From a factual

standpoint, all of the cases addressed information that jurors learned outside of the

courtroom, not their observations inside the courtroom.

         More importantly, however, none of the three Supreme Court cases-nor any

prior or subsequent opinion from the Supreme Court or this court-stands for the

sweeping proposition that a Sixth Amendment violation occurs whenever a judge

permits the jury to consider inadmissible subject matter. 15 Adopting the rule Barry and



14 The citation to Fields v. Brown is particularly inapt because the dissent relies on Judge
Gould's concurrence/dissent in Fields rather than the majority opinion. Dissent at 6 (citing
Fields v. Brown, 503 F.3d 755, 783 (9th Cir. 2007) (Gould, J., concurring in part and dissenting
in part)). Fields is an en bane decision in which the majority expressly distinguished Turner,
379 U.S. 466, concluding (as we do) that Turner is factually inapposite. Fields, 503 F.3d at
780.
15 To the extent that either of the dissenting opinions suggests that this right can be inferred
from the Fourteenth Amendment's due process clause rather than from the Sixth Amendment,
we decline to decide this case on due process grounds for the reasons stated in note 12,
supra.

                                              18
State v. Barry (Robert), No. 89976-2


the dissents urge would hold trial courts to an impossibly high standard, requiring us

to apply the strict constitutional harmlessness test to every trial in which a trial court

permitted the jury to consider hearsay, improper character evidence, irrelevant

materials, or any other form of inadmissible subject matter. Such a rule would

effectively nullify our long-standing standard of review for evidentiary errors and hold

our trial courts to an impossible-to-satisfy standard of evidentiary perfection. We

expressed this concern in White, the case in which we announced the first iteration of

the nonconstitutional error standard for criminal cases:

       [N]ot all hearsay evidence ... is grounds for reversal, even though
       admitted in error, for the concept of harmless error remains with the
       courts. A judicial system which treats every error as a basis for reversal
       simply could not function because, although the courts can assure a fair
       trial, they cannot guarantee a perfect one. Thus, error without prejudice
       is not reversible. Expressed differently, error which does not substantially
       affect the merits of the controversy likewise is not grounds for reversal.

72 Wn.2d at 530-31 (citation omitted).

       It is, of course, axiomatic that a jury's verdict must be based on evidence

presented     at   trial;   11   WASHINGTON     PRACTICE:     WASHINGTON        PATTERN JURY

INSTRUCTIONS: CRIMINAL 1.01 (3d ed. 2008), which the trial court both read aloud and

provided to the jury in writing, explicitly says as much. 16 But we will not presume

constitutional error simply because the jury may have considered subject matter that,

while not evidence, was evident and obvious to them in the courtroom. For these

reasons, we reject Barry's Sixth Amendment argument.



16The trial court's jury instruction 1 states, in relevant part, "Your decisions as jurors must be
made solely upon the evidence presented during these proceedings. The evidence that you
are to consider during your deliberations consists of the testimony that you have heard from
witnesses and the exhibits that I have admitted during the trial. ... "

                                               19
State   v. Barry (Robert), No. 89976-2

Ill.    Application of the Nonconstitutional Harmless Error Standard

         Having concluded that the trial court's instruction violated neither the Fifth nor

the Sixth Amendment, we apply the nonconstitutional harmless error standard to the

conceded error of permitting the jury to consider Barry's demeanor as evidence. The

party presenting an issue for review has the burden of providing an adequate record

to establish error. State v. Andy, 182 Wn.2d 294, 299-301, 340 P.3d 840 (2014) (citing

State v. Koss, 181 Wn.2d 493, 503, 334 P.3d 1042 (2014); State v. Slerl, 181 Wn.2d

598, 608, 334 P.3d 1088 (2014); State           v.   Njonge, 181 Wn.2d 546, 556, 334 P.3d

1068, cett. denied, ·135 S. Ct. 880 (2014)). It is therefore incumbent on Barry to

demonstrate that '"within reasonable probabilities ... the outcome of the trial would

have been materially affected"' had the error not occurred. Smith, 106 Wn.2d at 780

(quoting Cunningham, 93 Wn.2d at 831 ).

         The parties agree that nothing in this record reveals Barry's demeanor at trial.

ER 103(a)(1) states that in the case of a ruling that erroneously admits evidence, the

party assigning error must not only object in a timely manner but also must "stat[e] the

specific ground of objection, if the specific ground was not apparent from           t~1e   context."

Here, while Barry generally objected to the trial court's in.struction, his counsel failed

to make any record suggesting how the court's instruction could have undermined or

weakened Barry's case. 17 Counsel could have attempted to make a record of Barry's

demeanor by asking the court to note for the record any unusual or potentially

prejudicial behavior. Such a record could have been made either contemporaneously



17In objecting to the trial court's instruction, Barry's counsel stated only that the case the court
was citing "is factually distinct from this one."

                                                20
State v. Barry (Robert), No. 89976-2


at the time Barry displayed a potentially prejudicial demeanor or after the jury's

question regarding Barry's demeanor. Without such a record, any argument about

prejudice is completely·speculative.

       The record's silence regarding the defendant's in·-court demeanor is doubly

fatal to Barry's challenge under the nonconstitutional harmless error standard: it is

impossible to know whether the demeanor "materially affected" the verdict at all, and,

even if it did, it is impossible to determine whether that effect was favorable or

unfavorable to Barry. The nonconstitutional standard does not presume prejudice, nor

have we ever suggested that a reviewing court applying the standard may speculate

as to potential prejudice. Because error without prejudice is not reversible, White, 72

Wn.2d at 531, we affirm.

                                       CONCLUSION

       We hold that the trial court's instruction did not violate the Fifth Amendment or

Sixth Amendment. VVe apply the nonconstitutional harmless error standard and affirm.




                                           21
State v. Barry (Robert), No. 89976-2




       WE CONCUR.




                                       22
State v. Barry (Robert Eugene)
Johnson, J., Dissenting




                                      No. 89976-2


      JOHNSON, J. ( dissenting)-A person charged criminally has a

constitutional right to a fair trial and to require that the State establish guilt beyond

a reasonable doubt through testimony, evidence, and exhibits. It is a long-

recognized element of a fair trial that the jury consider only relevant and competent

evidence bearing on the issue of guilt or innocence. Today's majority opinion

abandons precedent and allows a conviction based on "evidence" that was not

presented during trial, to which the defense could not respond and which an

appellate comt is unable to review.

       During deliberations, the jury asked the trial court if it could consider the

defendant's "actions-demeanor" during trial. In response, the court instructed the

jury to consider as evidence everything it had observed in the courtroom. Because

this instruction was given after the trial ended and arguments were concluded,

Robert Barry did not have an opportunity to confront, rebut, cross-examine, or

explain his demeanor, which the court directed that the jury could consider as
State v. Barry (Robert Eugene), No. 89976-2
(Johnson, J., dissenting)


"evidence." The majority characterizes the trial court's response to the jury as

'"instructional error[]'" 1 and holds that the error did not implicate Barry's

constitutional rights to a fair triaL Majority at 4. The majority reasons that the error

was not of constitutional magnitude because it did not violate Barry's Fifth

Amendment privilege against self-incrimination or his Sixth Amendment rights

because the text of the Sixth Amendment does not suggest the existence of a

constitutional right to an evidence-based verdict. Majority at 13-14; U.S. CONST.

amends. V, VI. The majority errs on both parts.

       The majority's unprecedented view of the Fifth and Sixth Amendments

strays from controlling federal precedent and basic principles of a fair trial: the

criminally accused has the right not to take the stand, to sit silently and not

incriminate himself, to know the substance of the evidence against him, to be


-·-------- - - - -
       1
          The error here cannot accurately be characterized as merely "instructional" because
in,structional errors are not. based on the .evidence admitted, but on the instructions to the jury
regarding how to make use of the admitted evidence. See, e.g., State v. Gresham, 173 Wn.2d
405,423~24, 269 P.3d 207 (2012) (finding nonconstitutional instructional error where the
trial court failed to give a limiting instruction in connection with character evidence); State v.
Johnson, 100 Wn.2d 607, 623, 674 P.2d 145 (1983) (finding constitutional instructional error
where the jury instructions omitted an element of the crime), overruled on other grounds by
State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985); State v. McCullum, 98 Wn.2d 484,
487-88, 656 P.2d 1064 (1983) (finding constitutional instructional error where the trial court
failed to instruct on the "beyond a reasonable doubt" standard). The error in this case is
simply not l)omparable. The trial court did not err in instructing the jury how to weigh the
evidence; it erred in allowing the jury to consider "evidence" that was not admitted at trial,
that is not in the record, and that the defendant had no opportunity to rebut. Classifying the
error in this case as "instructional" trivializes the consideration ofunadmitted, unconfronted,
and unrecorded information as evidence.


                                                 2
State v. Barry (Robert Eugene), No. 89976-2
(Johnson, J., dissenting)


afforded an opportunity to confro'nt that evidence, and to receive a verdict based on

the properly admitted evidence. The trial court's instruction that the jury consider

unadmitted, unconfronted, and unknowable "demeanor" evidence violates each of

those constitutionally guaranteed rights. His conviction should be reversed and this

case remanded for a constitutionally fair trial.

       Fifth Amendment

       The majority erroneously concludes that the nontestimonial nature of

Barry's perceived demeanor, and the fact that the reference to demeanor did not

amount to a comment on the defendant's right to silence, removes this error from

the Fifth Amendment's purview. In so concluding, it largely relies on cases

involving evidence of the defendant's out of court demeanor. 2



       2
         See majority at 9-10 (citing United States v. Velarde-Gomez, 269 F .3d 1023, 1030-31
(9th Cir.2001) (involving evidence ofthe defendant's demeanor at the time of arrest); State v.
Mauro, 159 Ariz. 186, 766 P.2d 59, 70-71 (1988) (involving an officer's observations of the
defendant's demeanor when arrested as opposed to when taken to the station to observe
photographs); United States v. Elkins, 774 F.2d 530, 537-38 (1st Cir. 1985) (involving witness
testimony that defendant was visibly nervous at the scene of the arrest)).
        The only two cases cited by the majority that do involve the defendant's in-court
demeanor are cited within afootnote, and neither case supports the majority's argument.
Majority at 10 n.9 (citing Cunningham v. Perini, 655 F.2d 98, 100 (6th Cir. 1981) (holding that
the prosecutor's comment on the nontestifying defendant's in-court demeanor violated his due
process rights, but the court did not reverse because the petitioner challenged the unpreserved
error via habeas corpus petition and the petitioner could not establish manifest error);
Christenson v. State; 261 Ga. 80,402 S.E.2d 41, 49 (1991) (holding that a comment on
demeanor during the sentencing phase is permissible because sound policy reason exists to
consider remorse evidence during sentencing)). Neither decision supports the majority's position
here that the court's direction to consider Barry's demeanor as evidence of guilt does not infringe
on Barry's Fifth Amendment rights.


                                                3
State v. Bany (Robert Eugene), No. 89976-2
(Johnson, J., dissenting)


      . However, the majority's narrow view of the Fifth Amendment contradicts

Ninth Circuit precedent. United States v. Schuler, 813 F .2d 978 (9th Cir. 1987). In

Schuler, the proseeutor told the j1.1ry it should consider the defendant's behavior

during triaL, including his laughter, as evidence of guilt. The Ninth Circuit held the

prosecutor violated the defendant's rights under the Fifth Amendment:

       ln. effect the defendant would be compelled to testify to explain any
        actual or possible behavior that the prosecutor might bring to the
        jury's attention. While this pressure to testify may well be the
      . exception, there is no reason for use of such comments that would
       justify even a ·slight opening of the door to an invasion of
        constitutional rights.

Schuler, 813 F.2d at 982.

       The court ack11owledged that the comment did not refer to Schuler's right

not to testify'' nor did the laughter constitute testimony' but the court was

concerned that such a comment by the prosecutor would "eviscerate the right to

remain silent by forcing the defendant to take the stand" to explain the perceived

in-court' demeanor. ·~~chuler, 813 F.2d at 982.

       btlier courts have' also recognized the constitutional implications of such a

direction to consider demeanor:

              It is clear that the prosecutor's reference to the courtroom
      · behavior of the defendant was improper. It impugned defendant's
        Fifth and Sixth Amendment rights. Defendant had a Fifth Amendment
        right not to testify, m1d he 'elected to exercise that right. He also had a
        Fifth Amendment right not to be convicted except on the basis of
        evidence adduced agair1st him: D~fendant had ... a Sixth Amendment

                                             4
State v. Barry (Robert Eugene), No. 89976-2
(Johnson, J., dissenting)


      right to a trial by jury .... In tandem, defendant had the right to a jury
      trial at whicl1, if he elected not to testify, the fact of his presence and
      his non-testimonial behavior in the courtroom could not be taken as
       evidence of his g~tilt.

United States v. Carroll, 678F.2d 1208, 1209 (4th Cir.l982) (emphasis added).
       '                 ''         •    I   <




       Toqay;s
       ..  . .
               majority. errs by. concluding
                     '             .,,   :.
                                             that Fifth Amendment protections

extend only to defendant testimony and to actual comments on the defendant's

right to remain silent. As recognized by federal courts, invitations to the jury to

consider nontestimonial in-court conduct still impugns the defendant's Fifth

Amendment right because it in essence compels the defendant to take the stand to

explain his    or her behavior.
           Here, we have no record of Barry's demeanor during trial, but we do know

that before trial began,      th~   court advised Barry that he should refrain from any

display of emotion. It advised that everyone in the courtroom remain stone-faced

throughout the trial and that no one should show any reaction to the children's

testimony. The court explained to Barry that such a showing of emotion could

''backfire[]" on his case. 4 Verbatim Report of Proceedings at 451. Assuming

Barry complied with that instruction, his observable lack of remorse throughout

trial likely prompted the question from the jury. By then instructing that the jury

could consider Barry's demeanor throughout trial as evidence of his guilt, the court

put him in the constitutionally intolerable position of either waiving his


                                                  5
 State v. Barry (Robert Eugene), No. 89976-2
 (Johnson, J., dissenting)


 constitutional right to refuse to testify, so that he could explain his remorseless

 attitude throughout trial or leave the jurors to formulate their own inferences about

  his behavior. The defendant has a recognized Fifth Amendment right not to be put

  in such an untenable position; there simply "is no reason for use of such comments

  that would justify even a slight opening of the door to an invasion of constitutional

  rights.~'   Schuler, 813 F.2d at 982.

tt''       Sixth Amendment

           The majority's textualist interpretation of the Sixth Amendment also

  contradicts explicit precedent: "The Sixth Amendment's guarantees of a trial by an

  impartial jury and the right of confrontation require that the jury base its verdict on

  th(~   evidence presented at trial." .Fields v. Brown, 503 F.3d 755, 783 (9th Cir. 2007)

  (Gould, .L, concurring/dissenting) (citing Turner v. Louisiana, 379 U.S. 466, 472-

  73, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965)).

               _ In the constitutional sense, trial by jury in a criminal case
           necessarily implies at the Very least that the "evidence developed"
           against a defendant shall come from the witness stand in a public
           courtroom where there is fhll judicial protection of the defendant's
           right of cor1frontation, of cross-examination, and of counsel.

   Turner, 379 U.S. at 172-73. This requirement "goes to the fundamental integrity of

   all that is embraced in the constitutional concept of trial by jury." Turner, 379 U.S.

   472. This constitutional right to an evidence-based verdict is a basic, long-standing




                                               6
    State v. Barry (Robert Eugene), No. 89976-2
    (Johnson, J., dissenting)


    principle. 3 It is troubling that the majority does not discuss or even reference

    controlling precedent and instead advances its own creative view of the Sixth

    Amendment.

           The fact that, practically speaking, jurors may often rely on

    "extraevidentiary" factors that are not compatible with the fundamental focus of

    the right to a fair trial and due process4 is unfortunate but not constitutionally

t   intolerable. I agree with the majority that the Fifth and Sixth Amendments do not

    (and cannot) guarantee that each conviction is based solely on the evidence

    presented because from the moment the jurors enter the courtroom, they may

    subconsciously form impressions about every aspect of the trial. This is an

    unavoidable human element of the trial process. But after the defense has rested its

    case, and after closing arguments, the trial court cannot instruct that those

    observations may be treated as "evidence" bearing on the determination of guilt or


           3   See Irvin v. Dowd, 366 U.S. 717, 723, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961)
    (defendant's right to an impartial jury requires a verdict based solely on the evidence presented
    at trial); Mattox v. United States, 146 U.S. 140, 149, 13 S. Ct. 50, 36 L. Ed. 917 (1892) (it is vital
    "that the jury should pass upon the case free from external causes tending to disturb the exercise
    of deliberate and unbiassed judgment"); United States v. Noushfar, 78 F.3d 1442, 1445 (9th Cir.
    1996) (stmctural error for the jury to consider unadmitted evidence because it "undermines one
    of the most fundamental tenets of our justice system: that a defendant's conviction may be based
    only on the evidence presented during the trial"); United States v. Perkins, 748 F.2d 1519, 1533
    (11th Cir. 1984) ("Extrinsic evidence, evidence that has not been subject to the procedural
    safeguards of a fair trial, threatens such constitutional safeguards as the defendant's right of
    confrontation, of cross-examination, and of counsel." (citing Turner, 379 U.S. at 743)).

           4
            See Andrew C. Helman, Racism, Juries, and Justice: Addressing Post- Verdict Juror
    Testimony ofRacial Prejudice During Deliberations, 62 ME. L. REv. 327, 330-31 (2010).


                                                      7
State v. Barry (Robert .Eugene), No. 89976-2
(Johnson, J., dissenting)


innocence when the defendant has had no opportunity to challenge or explain that

"(~vidence." ~nch an       instruction is akin to allowing a prosecutor to argue evidence

not presen~ed at trial or toallowiqg' a r\.ew witness to testify privately~ without

c.ross-examination, to the jury during its deliberations. It deprives the defendant his

right to corliront the evidence, and at the very least, it deprives Barry an

opportunity to challenge the propriety of the use of this "evidence" in the

determination of guilt.

          One would hope that an instruction that the jury could consider a

defendant's race, gender, religious beliefs, or physical appearance in its

deliberations would be constitutionally reprehensible-_that we would not tolerate

such an instruction to consider irrelevant attributes as "evidence" of guilt.

Similarly, the trial court?s vague instruction here to consider the defendant's
     ·,     ''   .                 .


"demeanor" invites that same prejudicial abuse and opens the door for the jury to

consider the appearance and demeanor of the defendant instead of focusing on the

evidence presented. Such an invitation violates basic notions of due process.

          The trial court sh?uld have responded to the juror's question, if at all, by
                       .   ·,



telling the jury to review the instructions already properly given, instructions

which stated, "It is your dut)_' to decide the facts in this case based upon the

evidence presente~l to yol1 during this trial. ... Your decisions as jurors must be

made solely upon the evidence presented during these proceedings." Clerk's

                                                8
State v.. Barry
          .     (Robert Eugene),
                          .      No. 89976-2
(Johnson, J., dissenting)


Papers at 119. Our criminal procedures are designed specifically to channel the

jury~s            considerations into narrow, structured, evidentiary categories. From jury

voir dire, designed to eliminate juror bias and prejudice, to the rules of evidence,

designed to            ~weigh          considerations of relevance, to the jury instructions themselves,

designed to require a reasoned analysis of admitted evidence in coming to a

verdict, criminal trial procedure aims at ensuring that defendants are convicted on

!evidence. The court's instruction to consider unconfronted "demeanor" evidence

deprived Barry of that constitutionally guaranteed right.

                  The majority's holding today is incongruous with precedent, with the

guaranties of the Fifth and Sixth Amendments, and with basic notions of fairness

and due process. It is well established that a court's instruction to consider
    '     I                   .    '          '




unadmitted, unrecorded, and unconfronted evidence impugns the defendant's
•       ,',   '    L      '       •·   '.         '               I                             '




constitutional right not to testify and violates his right to confront the evidence

against him. Because the error is constitutional in nature and Barry objected to the

in~t~uction            at trial, the State bears the burden of establishing that the error was

harmless beyond a reasonable doubt. State v. Jones, 168 Wn.2d 713, 724, 230 P.3d

576 (2010). !'he State cannot meet this burden based on this silent record. Barry's




                                                              9
State v. Barry (Robert Eugene), No. 89976-2
(Johnson, J., dissenting)


conviction should be reversed and the case remanded for a new trial.



                                              .......·"''""""'...   --
                                       (__




                                                               10
State v. Barry (Robert Eugene), No. 89976-2
(Gordon McCloud, J., Concurring in Dissent)




                                    No. 89976-2



      GORDON McCLOUD, J. (concurring in dissent)-! agree with the dissent's

comprehensive explanation of why the court's instruction violated Robert Barry's

right to a verdict based solely on the evidence under the Sixth Amendment to the

United States Constitution. I also believe that the comment violated Barry's due

process rights to both a fair trial and a trial based solely on the evidence under the

Fourteenth Amendment to the United States Constitution. I therefore concur in the

dissent.




                                          1
State v. Barry (Robert Eugene), No. 89976-2
(Gordon McCloud, J., Concurring in Dissent)




                                          2
