                                                             :COURT OF APPEALS DIY I
                                                               STATE OF WASHINGTON
                                                              2019 JAN 14 All 9:05


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                     )
                                         )   No. 76958-8-1
                    Respondent,          )
                                         )   DIVISION ONE
             v.                          )
                                         )
ROBERT DANIEL SMITH, JR.,                )   UNPUBLISHED OPINION
                                         )
                    Appellant.           )   FILED: January 14, 2019
                                         )

      SMITH, J. — Robert Smith Jr. appeals his conviction for third degree

assault against a law enforcement officer. Smith argues that the trial court erred

in admitting an incriminating statement Smith made after he invoked his right to

remain silent. He also argues that the prosecutor committed reversible

misconduct during closing argument by improperly commenting on Smith's right

to remain silent. But Smith's incriminating statement was not the result of police

interrogation, and the prosecutor's statement during closing argument was not an

improper comment on Smith's right to remain silent. Therefore, we affirm.

                                      FACTS

       On January 19, 2017, at 11:14 p.m., Snohomish County Sheriff's Deputy

Evan Twedt responded to a 9-1-1 report that an individual was walking in the

middle of the street in Snohomish. When Deputy Twedt arrived, he observed a

man, later identified as Smith, walking in the eastbound lane of traffic and

carrying a duffle bag.
No. 76958-8-1/2

      Deputy Twedt parked and got out of his patrol car, and Smith walked

toward him. Smith appeared "relaxed, calm, and inviting to talk to." Smith said

that he almost got hit by a car, and in response, Deputy Twedt asked Smith his

name. Smith "chuckled and laughed and said,'No, what is your name?" Deputy

Twedt responded that his name was Deputy Twedt and again asked Smith his

name. Then,

      [Smith's] total posturing changed. He dropped one foot back and
      started walking towards me. He dropped off the bag over his
      shoulder, and his fists were balled—his hands were balled into fists.
      His shoulders were kind of set back. His chest was puffed out as
      he started walking towards me.

Smith "scrunched up his face as if he appeared angry." When he was within four

or five feet of Deputy Twedt, Smith lowered his voice in a stern manner and

demanded,"No, what is your name?" Deputy Twedt took a couple of steps

back and, anticipating a fight or attack based on Smith's change in behavior,

asked Smith,"Do you really want to do this?" Smith replied, "'Yes, we're doing

this." Deputy Twedt immediately called for backup because he believed an

attack was imminent.

      Smith tried to reach into his bag, but Deputy Twedt grabbed his arm and

spun him around to prevent him from doing so. A physical altercation ensued,

and Smith struck Deputy Twedt several times. Sergeant Michael Sutherland

arrived while Smith and Deputy Twedt were struggling on the ground and helped

Deputy Twedt handcuff Smith.

      Deputy Daniel Uhrich arrived on the scene after Smith Was handcuffed.

He then conducted a search incident to arrest and secured Smith in the back of


                                        2
No. 76958-8-1/3

his patrol car. Shortly thereafter, Deputy Uhrich transported Smith to Providence

Hospital and stayed in the hospital with Smith for approximately half an hour.

During the car ride and in the hospital, Deputy Uhrich and Smith repeatedly

engaged in a conversation where Smith would ask why he was under arrest and

then debate with Deputy Uhrich whether or not he assaulted Deputy Twedt. In

one instance of this conversation that took place in the hospital, Smith told

Deputy Uhrich, "I didn't really fight him. If I had wanted to, then I could have

killed him."

       Deputy Matthew Houghtaling was appointed the primary investigating

officer in the case. After taking pictures at the scene, Deputy Houghtaling went

to Smith's hospital room to relieve Deputy Uhrich and work on his report. When

he arrived, Deputy Houghtaling read Smith his Miranda' rights for the first time,

and Smith expressed a desire to remain silent. Deputy Uhrich then instructed

Deputy Houghtaling to include in the report Smith's comment that he could have

killed Deputy Twedt if he had wanted to. Smith overheard this instruction and

responded by telling Deputy Houghtaling that "some time down the road the

same thing was going to happen to [him]."2

      The State charged Smith with third degree assault. The trial court held a

CrR 3.5 hearing to determine whether Smith's statements to Deputy Uhrich and

Deputy Houghtaling were admissible. The court held that Smith's conversations



      1 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
      2 At the CrR 3.5 hearing, the court found that Smith's statement to Deputy
Houghtaling was, "It's going to happen to you, too." The meaning of both
statements is materially the same.
                                         3
No. 76958-8-1/4

with Deputy Uhrich about the basis for his arrest were spontaneous statements,

not the product of interrogation, and were admissible and that Smith's statement

to Deputy Houghtaling was also admissible. But, the court found that Smith's

statement to Deputy Uhrich that Smith could have killed Deputy Uhrich was the

product of interrogation and not admissible. During the jury trial, Sergeant

Sutherland and Deputies Twedt, Uhrich, and Houghtaling, each testified. Smith

did not testify.

       In closing argument, the prosecutor argued that all elements of the crime

were satisfied and that the witnesses presented by the State were credible and

painted an "unrefuted" picture of what happened. Defense counsel argued that

Smith was simply resisting arrest and that the State failed to prove Smith

intended to assault Deputy Twedt, as required to convict.

       The jury found Smith guilty, and the trial court sentenced him to 101/2

months of confinement. Smith appeals.

              SUPPRESSION OF SELF-INCRIMINATING STATEMENT

       Smith argues that the trial court erred by failing to suppress Smith's

statement to Deputy Houghtaling because it was the result of interrogation after

Smith invoked his right to remain silent.3 We disagree.

       The Fifth Amendment to the United States Constitution states that Inio

person . . . shall be compelled in any criminal case to be a witness against




       3 In his opening brief, Smith assigned error to the fact that no written
findings of fact or conclusions of law were entered under CrR 3.5. The State filed
those findings and conclusions on January 5, 2018, and Smith has abandoned
this assignment of error.
                                         4
No. 76958-8-1/5

himself." See also WASH. CONST. art. 1 § 9. To preserve an individual's right

against compelled self-incrimination, police must inform a suspect of his rights

before custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966).

       Under Miranda, once the warnings are given, if an individual "indicates in

any manner, at any time prior to or during questioning, that he wishes to remain

silent, the interrogation must cease." Miranda, 384 U.S. at 473-74. Interrogation

occurs "'whenever a person in custody is subjected to either express questioning

or its functional equivalent" such as "any words or actions on the part of the

police (other than those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating response from the

suspect." State v. Wilson, 144 Wn. App. 166, 184, 181 P.3d 887(2008)(quoting

Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297

(1980)). "The last part of the definition focuses on the perceptions of the

suspect, rather than on the intent of the police." Wilson, 144 Wn. App. at 184.

"Any statement given freely and voluntarily without any compelling influences is,

of course, admissible in evidence." Miranda, 384 U.S. at 478.

       "[F]indings of fact entered following a CrR 3.5 hearing will be verities on

appeal if unchallenged; and, if challenged, they are verities if supported by

substantial evidence in the record." State v. Broadaway, 133 Wn.2d 118, 131,

942 P.2d 363(1997). We determine de novo whether the trial court's

conclusions of law properly derive from its findings of fact. State v. Solomon, 114

Wn. App. 781, 789, 60 P.3d 1215 (2002).


                                          5
No. 76958-8-1/6

       Here, the trial court held a CrR 3.5 hearing on May 12, 2007. The

following relevant findings of fact and conclusions of law were entered on

January 5, 2018, while this appeal was pending:

      1.5 On the way to the hospital and eventually in the hospital room,
      the defendant and Deputy Uhrich had an ongoing conversation in
      which the defendant repeatedly asked why he was under arrest and
      Deputy Uhrich answered "for assaulting an officer." The defendant
      denied assaulting an officer, and Deputy Uhrich responded with
      facts that essentially stated the officer's contrary view — that the
      defendant did assault an officer because there was a physical
      confrontation in which both were injured. This conversation
      happened multiple times in the patrol car and at least once in the
      hospital room.

       1.6 During one iteration of the above conversation, which took
       place in the hospital room, the defendant told Deputy Uhrich, "I
       didn't really fight him. If I had wanted to, then 1 could have killed
       him."

      1.7 Deputy Houghtaling arrived to assist Deputy Uhrich in the
      hospital room. Deputy Uhrich, in the defendant's presence, told
      Deputy Houghtaling about the defendant's "I could have killed him"
      comment. Deputy Uhrich told Deputy Houghtaling to write it down.
      The defendant then told Deputy Houghtaling, "It's going to happen
      to you, too."

Smith does not challenge these facts, and they are verities on appeal. The trial

court also entered the following conclusion of law:

      3.4 The defendant's statement to Deputy Houghtaling, "It's going to
      happen to you, too," was spontaneously made. It was elicited
      following Deputy Uhrich informing Deputy Houghtaling about the
      defendant's "I could have killed him" comment, and Deputy Uhrich
      telling Deputy Houghtaling to include that statement in his report.
      This conversation between two Deputies, even in the defendant's
      presence, was not the functional equivalent of interrogation under
      the facts of this case. Therefore the defendant's comment, "It's
      going to happen to you, too," is admissible pursuant to CrR 3.5.

Smith challenges this conclusion.



                                          6
No. 76958-8-1/7

      The trial court did not err in concluding that Smith's statement to Deputy

Houghtaling was admissible. When the statement was made, Houghtaling had

read Smith his Miranda rights and Smith had exercised his right to remain silent.

Deputy Uhrich's instruction to Deputy Houghtaling to put Smith's previous

statement in the report was not interrogation because it was merely a

conversation between two deputies in Smith's presence and was not the

functional equivalent of express questioning.

      Smith argues that Deputy Uhrich's instruction to Deputy Houghtaling was

an interrogation because Deputy Uhrich should have known that the statement

would elicit a response from Smith given their previous ongoing conversation

about the underlying basis for Smith's arrest. But Deputy Uhrich's statement to

Deputy Houghtaling was reasonable under the circumstances and did not call for

a response from Smith. See State v. Breedlove, 79 Wn. App. 101, 112-13, 900

P.2d 586 (1995)(officer's accusatory response to defendant's inquiry did not call

for a response, and the officer could not have known his statement would elicit

an incriminating response); State v. Webb,64 Wn. App. 480, 486, 824 P.2d 1257

(1992)(same). Furthermore, the record does not suggest that Deputy Uhrich

knew Smith was "unusually disoriented or upset" at the time of the statement.

Innis, 446 U.S. at 303. Therefore, this argument is not persuasive.

       Smith also argues that Deputy Uhrich could have included the statement

in his own report and the only reason for repeating it to Deputy Houghtaling was

to incite Smith into making an incriminating statement. But the record shows that

there were other proper reasons for Deputy Uhrich's instruction: Deputy


                                        7
No. 76958-8-1/8

Houghtaling was the primary investigating officer in the case and was working on

his report while in Smith's hospital room. Therefore, this argument fails.

        Finally, Smith argues that Wilson is controlling and requires reversal. It

does not. In that case, the defendant was arrested, interrogated by police, and

advised of her Miranda rights after she stabbed her boyfriend. Wilson, 144 Wn.

App. at 182. The police ceased questioning her when she made a reference to

an attorney. Wilson, 144 Wn. App. at 182. Later, an officer reentered the

interrogation room to tell the defendant that her boyfriend had died. Wilson, 144

Wn. App. at 182-83. She responded, "'l didn't mean to kill him. I didn't mean to

stab him." Wilson, 144 Wn. App. at 183 (internal quotation marks omitted). The

Court of Appeals held that the officer should have known that the death

notification was reasonably likely to elicit an incriminating response. Wilson, 144

Wn. App. at 184.

      Smith is not in the same position as the defendant in Wilson. Deputy

Uhrich did not deliver emotionally charged news to Smith that was likely to elicit

an incriminating response. Nothing in the record suggests that Deputy Uhrich's

recitation of Smith's previous statement to Deputy Houghtaling for the police

report was reasonably likely to elicit an incriminating response. Therefore, the

trial court did not err in holding that Smith's subsequent statement to Deputy

Houghtaling was admissible.




                                         8
No. 76958-8-1/9

          PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT

       Smith argues that the prosecutor's reference to the police officers'

testimony as "unrefuted" was prosecutorial misconduct because it was an

improper comment on Smith's decision not to testify at trial. We disagree.

       "To prevail on a claim of prosecutorial misconduct, the defendant must

establish 'that the prosecutor's conduct was both improper and prejudicial in the

context of the entire record and the circumstances at trial." State v. Thorgerson,

172 Wn.2d 438, 442, 258 P.3d 43(2011)(internal quotation marks omitted)

(quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).

      "The State may not use a defendant's constitutionally permitted silence as

substantive evidence of guilt." State v. Romero, 113 Wn. App. 779, 787, 54 P.3d

1255 (2002). It is well settled that the State violates due process where it

comments on a defendant's exercise of his right to remain silent. Id. at 786-87.

But a "prosecutor may say that certain testimony is undenied as long as he or

she does not refer to the person who could have denied it." State v. Fiallo-

Lopez, 78 Wn. App. 717, 729, 899 P.2d 1294(1995).

       Here, during closing argument, the prosecutor explained the importance of

the jury's role in assessing the credibility of the witnesses at trial. He explained:

       it is my hope that now after hearing four people testify to you live
       and in person with some photographs, but not a whole lot of
       physical evidence, no video, that you now know from hearing
       people testify credibly and observing them in a way that you come
       into this jury box with significant skills and experience under your
       belt, collectively hundreds of years of experience in assessing
       people, in listening to them talk, in hearing do I believe this person?
       Do I have a reason to disbelieve this person?
               If you go through that process with the testimony of Deputy
       Twedt, Sutherland, Uhrich, and Houghtaling, together it paints a

                                          9
No. 76958-8-1/10

       picture that is unrefuted and it is credible about what exactly
       happened in this case.[4]

This statement was not improper. Although the prosecutor did refer to the

officers' testimony as "unrefuted," he did not refer to Smith as the one who could

refute that testimony. Therefore, reversal is not warranted because the comment

was not a violation of Smith's rights and did not constitute prosecutorial

misconduct. Cf. Fiallo-Lopez, 78 Wn. App. at 729 (prosecutor improperly

commented on the defendant's silence when the prosecutor argued that

defendant did not attempt to rebut the prosecution's evidence).

       We affirm.




WE CONCUR:




       4(Emphasis added.)

                                         10
