                                                                   ILED
                                                         COURT OF APPEALS Qi\
                                                          STATE OF WASHINGTON

                                                          2013 APR-I   AH 9-k




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                       No. 67377-7-1
                       Respondent,
                                                       DIVISION ONE
               v.

                                                       PUBLISHED OPINION
THOMAS M. GAUTHIER,

                       Appellant.                      FILED: April 1,2013


       Appelwick, J. — Gauthier exercised his constitutional right to refuse to consent

to a warrantless search and seizure of his DNA.    The State introduced evidence of his


refusal and argued it was substantive evidence of his guilt. We reverse.

                                         FACTS


       Thomas Gauthier appeals from his conviction of second degree rape. He was

charged in King County for the 2001 rape of T.A. Gauthier and T.A.'s version of events

differed substantially at trial.

       Gauthier testified that on the night of April 21-22, 2001, he was high and walking

along Des Moines Memorial Drive. He wanted to find someone to sell him crack, so he

caught up with a woman walking ahead of him. The woman did not have any crack, but

she accepted Gauthier's offer of $50 in exchange for oral sex. The two stepped over

the guardrail into a grassy area, where Gauthier laid down his coat. The woman knelt

down and performed oral sex. Gauthier testified that after he ejaculated, the woman
No. 67377-7-1/2




turned her head and spit. She then demanded the money, but Gauthier recognized her

to be someone who previously cheated him in a drug deal. He refused to pay her and

the woman got angry and yelled at him. Gauthier denied using force at any point during

the encounter.


       T.A. testified that she was walking home on Des Moines Memorial Drive late on

the night of April 21-22, 2001. She said that she was suddenly tackled from behind and

pushed down over a guardrail into the grass. She told her assailant that she was on her

period and even removed her tampon to prove it. She testified that the man put his

hands around her neck and forced her to perform oral sex. After he finished, the man

ran away, and T.A. wiped her mouth on her coat and went home.

       T.A. did not call the police from her apartment, because she was behind on her

phone bill and could only receive incoming calls. She was so angry that she grabbed a

kitchen knife and went looking for the man. She could not find him, so she returned

home. Her sister and sister's boyfriend, Donald Brown, called soon after, and T.A. told

Brown everything. Brown came over to her apartment and found her very upset. The

two drove around looking for the man, but still could not find him. T.A. did not ask her

sister or Brown to call the police.

       The next morning T.A. called the police after she realized she could call 911 from

her phone. The responding officer found T.A. upset and crying, with bruises on her left

arm and right thigh. T.A. took the officer to the grassy area where she said the rape

occurred. The officer found a tampon at the scene and an area of flattened grass. He

took T.A.'s statement and put her clothing into evidence.
No. 67377-7-1/3




         Detectives returned to the scene several different nights trying to locate

witnesses or suspects. They stopped and questioned Gauthier on June 28th within a

mile and a half from the scene. The officers wrote down Gauthier's contact information

and let him continue on his way.

         The crime lab found DNA (deoxyribonucleic acid) on T.A.'s jacket sleeve—one

female partial profile matching T.A. and one male partial profile. At the time, no sample

in the police database matched the male profile.     Police called T.A. at least once or

twice to look at photographs to try to identify a suspect. At one point, she saw a photo

of L.F.1 and was 80 percent sure he was her attacker. L.F. voluntarily provided a DNA
sample, but his DNA did not match the sample from T.A.'s jacket.

         Seven years later in 2008, police reopened the case when Gauthier's DNA was

matched with the sample from T.A.'s jacket.       By that time, Gauthier was living in

Arizona. In January 2009, Detective Chris Knudsen called Gauthier and told him that

his DNA was found on the jacket of a reported rape victim. Knudsen asked Gauthier if

he could explain why his DNA would be there. Though Gauthier could not explain, he

told Knudsen that he had frequented prostitutes in that area.       Gauthier repeatedly

denied raping anyone.

         Before obtaining a warrant or court order, Knudsen requested a cheek swab

sample of Gauthier's DNA. Knudsen testified at trial that Gauthier initially agreed to

provide a DNA sample, but Gauthier disputed that fact.       Knudsen warned Gauthier

about the gravity of the situation.    Concerned, Gauthier contacted a lawyer, who


         1 We use L.F.'s initials, because he was exonerated in this case. He is not a
minor.
No. 67377-7-1/4




advised Gauthier to refuse consent to the warrantless DNA sample. Gauthier then

called Knudsen and left a voicemail that he was refusing to give the DNA sample on the

advice of counsel.    Knudsen eventually obtained a DNA cheek swab sample from

Gauthier after getting a court order.

       Before trial, defense counsel moved to exclude evidence of Gauthier's refusal,

arguing that it would be an impermissible comment on his Fifth Amendment right to

silence and right to counsel. The prosecutor responded:

      I don't intend to offer evidence in my case in chief that he refused to
      provide a DNA sample when initially asked down in Arizona, but should he
      elect to testify, I certainly think it's fair grounds for me to cross-examine
      him on that fact. I mean, if his theory is true that this was just, you know,
      an act of prostitution gone bad he should be giving up DNA samples right
      and left. He didn't do anything wrong, and it's completely counterintuitive
      to the position in the defense theory.

The prosecutor soon after reiterated that her wish to cross-examine Gauthier about his

refusal was "not a comment on a constitutional right. It's a comment on the fact that

he's taking an action, which is inconsistent with someone who is innocent."

      The court concluded that if Gauthier testified, the prosecutor could cross-

examine him about his refusal to provide DNA so long as the question did not reference

his right to an attorney. The court suggested the phrasing: '"Isn't it true that you refused

to provide a DNA sample when asked to do so in Arizona?'" The court reasoned that

DNA is not testimonial, so it would not implicate his Fifth Amendment rights.

       On cross-examination, the prosecutor asked Gauthier about his refusal to

provide a DNA sample. Defense counsel made no objection. Defense counsel brought

up the refusal in closing, arguing that it was reasonable for Gauthier to refuse to give a

DNA sample upon his lawyer's advice. Defense counsel told the jury "[Gauthier] told
No. 67377-7-1/5




[Knudsen] everything because he had nothing to hide. He had nothing to hide." In

rebuttal, the prosecutor contrasted Gauthier's refusal with L.F. voluntarily providing a
DNA sample. She said:

       What did [L.F.] do? Sign me up. Here are my swabs. I didn't do this.
       And low and behold [L.F.] was excluded. Excluded. Exonerated by DNA
       from that jacket. [L.F.'s] actions of sign me up, here's my DNA, I didn't do
       this are consistent with someone who is innocent. This guy's actions are
       consistent with someone who is not. You don't want to provide your DNA
       sample because, you know, it's going to be there. Because you're guilty.

Defense counsel did not object to this argument. The jury found Gauthier guilty and the

court imposed a standard range sentence. Gauthier timely appealed.

                                       DISCUSSION


       Gauthier argues that the State violated his due process rights, as well as his

rights under the Fourth Amendment and article I, section 7 of the Washington

Constitution, by presenting evidence of his refusal to provide a DNA sample as

substantive evidence of guilt. Because Gauthier failed to raise this objection to the trial

court, he has waived the issue absent manifest constitutional error. RAP 2.5(a)(3). An

error raised for the first time on appeal must be manifest and truly of constitutional

dimension.   State v. Kirkman. 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).             The

defendant must show how the alleged error actually affected his rights at trial. Jd. at

926-27. If we determine that the claim raises a manifest constitutional error, it may still

be subject to harmless error analysis. JcL at 927.

  I.   Manifest Constitutional Error

       A blood test or cheek swab to procure DNA evidence constitutes a search and

seizure under the Fourth Amendment and article I, section 7 of the Washington
No. 67377-7-1/6




Constitution. State v. Garcia-Salqado. 170 Wn.2d 176, 184, 240 P.3d 153 (2010); State

v. Curran. 116 Wn.2d 174, 184, 804 P.2d 558 (1991), overruled on other grounds bv

State v. Berlin. 133 Wn.2d 541, 947 P.2d 700 (1997). Because taking a DNA sample

constitutes a search, a warrant or court order is first required.      Garcia-Salqado. 170

Wn.2d at 184, 186. As a result, individuals have a constitutional right to refuse consent

to warrantless sampling of their DNA. See Schneckloth v. Bustamonte. 412 U.S. 218,

228, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Morse. 156 Wn.2d 1, 13, 123

P.3d 832 (2005).

       The Ninth Circuit's Prescott opinion supports Gauthier's argument. United States

v. Prescott. 581 F.2d 1343 (9th Cir. 1978). There, police thought a suspect might be

hiding in Saundra Prescott's apartment. Ig\ at 1347. She refused to let the police in

without a warrant.   ]g\   The police eventually kicked the door in, found the suspect

hiding inside, and charged Prescott as an accessory after the fact.         Jg\ At trial, the

prosecution introduced Prescott's refusal to allow the warrantless search as evidence of

the charged offense, ig\ at 1350.

       The Ninth Circuit concluded that, because the Fourth Amendment gives

individuals a constitutional right to refuse consent to a warrantless search it is privileged

conduct that cannot be considered as evidence of criminal wrongdoing. JcL at 1351.

This is so, the court explained, regardless of the individual's motivations. JdL at 1351 &

n.2. The right to refuse consent exists for both the innocent and the guilty. kL at 1352.

Ifthe government could use such a refusal against an individual, it would place an unfair

and impermissible burden upon the assertion of a constitutional right. ]g\ at 1351. As a
No. 67377-7-1/7




result, future consents would not be "'freely and voluntarily given.'" Id. (quoting Bumper
v. North Carolina. 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)). Though

the court reversed Prescott's conviction on other grounds, it stated that if the case

proceeded to retrial, the trial court should take care to exclude all evidence of Prescott's

refusal to consent to the search. Id at 1353.

      The Prescott court's conclusion was based in part on its analogy to the Fifth

Amendment right to silence. Jd at 1352.         Both the United States and Washington

Supreme Courts have held that defendants' exercise of their Fifth Amendment right to

silence may not be introduced against them at trial as substantive evidence of guilt.

See, e.g.. Griffin v. California. 380 U.S. 609, 614, 85 S. Ct. 1229, 14 L. Ed. 2d 106

(1965); State v. Burke. 163 Wn.2d 204, 221-22, 181 P.3d 1 (2008). To hold otherwise

would allow courts to penalize individuals for lawfully exercising a constitutional

privilege. Griffin. 380 U.S. at 614; Burke. 163 Wn.2d at 212, 221.

      One reason a defendant's silence may not be introduced at trial as evidence of

guilt is because silence is ambiguous. Prescott. 581 F.2d at 1352 (citing United States

v. Hale. 422 U.S. 171, 176-77, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975)).                The

Washington Supreme Court in Burke noted similar skepticism about the probative value

of silence.   163 Wn.2d at 218-19.        If a defendant's silence was admissible, the

prosecutor might argue that if the defendant had nothing to hide, he would not have

kept silent. Prescott. 581 F.2d at 1352. But, even an innocent person may have many

reasons for not speaking, like mistrusting antagonistic law enforcement, being under no

obligation to speak, or simply knowing that anything you say can be used against you.
No. 67377-7-1/8




Burke. 163 Wn.2d at 218-19. In most cases, it is impossible to conclude that refusal to

speak is more consistent with guilt than with innocence. Id at 219. As a result, such

evidence can be readily misinterpreted by the jury, which renders any "curative or

protective instruction of dubious value." Prescott. 581 F.2d at 1352.

       The same can be said about exercising the constitutional right to privacy. See jd

If evidence of refusal to consent to a search was admissible, the prosecutor might argue

that if the defendant were not trying to hide something, he would let the officer conduct

the search. ]d But, individuals might not want police to enter their home, whether or

not there is evidence of wrongdoing. Similarly, individuals might not want their DNA to

be forever catalogued in a police database.         Or, they might not want police to have

access to all the personal information DNA contains.         Exercising the right to refuse

consent to a warrantless search may have nothing to do with hiding guilt. The jury

should not be allowed to infer guilt in such ambiguous circumstances, particularly

involving the exercise of a constitutional right.

       In addition to the Ninth Circuit, at least four other federal circuit courts and 15

states have reached the same conclusion.2 The Fifth Circuit noted that "circuit courts

       2 See, e.g.. United States v. Runvan. 290 F.3d 223, 249 (5th Cir. 2002); United
States v. Moreno. 233 F.3d 937, 940-41 (7th Cir. 2000); United States v. Dozal. 173
F.3d 787, 793-94 (10th Cir. 1999); United States v. Thame. 846 F.2d 200, 206-07 (3d
Cir. 1988); Elson v. State. 659 P.2d 1195, 1197-99 (Alaska 1983); State v. Stevens. 228
Ariz. Ct. App. 411, 416-17, 267 P.3d 1203 (2012); People v. Wood. 103 Cal. App. 4th
803, 808-09, 127 Cal. Rptr. 2d 132 (2002); Gomez v. State. 572 So. 2d 952, 953 (Fla.
Dist. Ct. App. 1990); Longshore v. State. 399 Md. 486, 537-38, 924 A.2d 1129 (2007);
People v. Stephens. 133 Mich. App. 294, 298, 349 N.W.2d 162 (1984); Ramet v. State.
125 Nev. 195, 198, 209 P.3d 268 (2009); Garcia v. State. 103 N.M. 713, 714, 712 P.2d
1375 (1986); State v. Jennings. 333 N.C. 579, 604-05, 430 S.E.2d 188 (1993); State v.
Wiles. 59 Ohio St. 3d 71, 88, 571 N.E.2d 97 (1991); Commonwealth v. Tillerv. 417 Pa.
Super. Ct. 26, 34, 611 A.2d 1245 (1992); Simmons v. State. 308 S.C. 481, 484-85, 419
S.E.2d 225 (1992); State v. Bowker. 2008 S.D. 61, 754 N.W.2d 56, 70; Reeves v.


                                                    8
No. 67377-7-1/9




that have directly addressed this question have unanimously held that a defendant's

refusal to consent to a warrantless search may not be presented as evidence of guilt."

United States v. Runvan. 290 F.3d 223, 249 (5th Cir. 2002).

      The Washington Supreme Court has also indicated, though not explicitly held,

that using refusal to consent to a search as evidence of guilt is unconstitutional. State

v. Jones. 168 Wn.2d 713, 725, 230 P.3d 576 (2010). In Jones, a police officer testified

that the defendant refused to take a DNA test and only provided a cheek swab after

court order. Jdat718. In closing, the State reiterated and emphasized that refusal. ]d

at 718, 725.    Jones argued on appeal that these comments constituted prejudicial

misconduct.    Jd at 725.    The Supreme Court reversed Jones's conviction on other

grounds. Jd at 720, 724-25. But, at the end of the opinion, the court addressed Jones's

misconduct argument.        Jd at 725.   The court explained that the comments were

improper because Jones had "a Fourth Amendment right to refuse to provide a DNA

swab sample." Jd The court continued, emphatically, "We go so far as to say that the

court's imprimatur is now upon the State and that such argument is improper and

should not be repeated on remand." Jd This language indicates that the Washington

Supreme Court considers such comments to be a constitutional violation.

       Nevertheless, the State attempts to argue that the Fourth and Fifth Amendment

rights function differently, so the right to silence cases are inapplicable here. The State

explains that the Fifth Amendment privilege against self-incrimination is violated at trial


Texas. 969 S.W.2d 471, 493-95 (1998); State v. Banks. 2010 Wl App. 107, 328 Wis.2d
766, 782, 790 N.W.2d 526. But see Smith v. State. 2010 Wl App. 107, 199 P.3d 1052,
1061 (2009) (holding that evidence of refusal to provide DNA sample was not prohibited
by Fifth Amendment).
No. 67377-7-1/10



when a defendant is compelled to be a witness against himself. On the other hand, the

State claims, Gauthier's Fourth Amendment rights were never violated. No warrantless

search was conducted and Gauthier's privacy never invaded.

        But, the State misses the point. The constitutional violation was that Gauthier's

lawful exercise of a constitutional right was introduced against him as substantive

evidence of his guilt. Whether defendants invoke their Fifth Amendment rights or their

Fourth Amendment rights, exercising a constitutional right is not admissible as evidence

of guilt.   See Griffin. 380 U.S. at 614; Burke. 163 Wn.2d at 212.        Moreover, the

Washington Supreme Court has shown no tendency to distinguish between the Fourth

and Fifth Amendments in such cases.         See Jones, 168 Wn.2d at 725.     Indeed, the

Burke court, analyzing the Fifth Amendment, stated that "[cjourts are appropriately

reluctant to penalize anyone for the exercise of any constitutional right." 163 Wn.2d at

221 (emphasis added).

       We hold that the prosecutor's use of Gauthier's invocation of his constitutional

right to refuse consent to a warrantless search as substantive evidence of his guilt was

a manifest constitutional error properly raised for the first time on appeal. The error

deprived Gauthier of his right to invoke with impunity the protection of the Fourth

Amendment and article I, section 7.        To hold otherwise would improperly penalize

defendants for the lawful exercise of a constitutional right.

 II.    Use of Refusal for Impeachment Purposes

       The State argues, in the alternative, that evidence of Gauthier's refusal to

consent was properly introduced for impeachment purposes.        Impeachment evidence




                                                 10
No. 67377-7-1/11




may be offered solely to show the witness is not truthful, usually in the form of prior

inconsistent statements. Burke. 163 Wn.2d at 219. But, such evidence may not be

used to argue that the witness is guilty. Id at 217. The Burke court acknowledged that

when a defendant testifies at trial, his prearrest silence may be used for impeachment.

Jd Federal circuit courts have held the same for refusal to consent to a search under

certain circumstances. For instance, in United States v. Dozal. the defendant's refusal

to consent to a search was admissible to impeach his testimony that he did not have

dominion or control over the premises. 173 F.3d 787, 794 (10th Cir. 1999). In Leavitt v.

Arave. the defendant's testimony that he fully cooperated with police could be

impeached by evidence of his refusal to consent to a search. 383 F.3d 809, 827 (9th

Cir. 2004).    In United States v. McNatt. the defendant's refusal to consent to a

warrantless search of his truck was admissible to impeach his testimony that police

planted drugs there at the time of his arrest.3 931 F.2d 251, 258 (4th Cir. 1991).
       However, here, use of the refusal evidence for impeachment purposes is not

supported by the record. The prosecutor told the court before trial that she wished to

introduce Gauthier's refusal, because it was inconsistent with the actions of someone

who is innocent. She believed that if Gauthier's prostitution story were true and he had

       3 The State also cites State v. Martin, in which the prosecutor elicited testimony
from the defendant implying that he tailored his testimony to evidence presented by
other witnesses. 171 Wn.2d 521, 536, 252 P.3d 872 (2011). The Washington Supreme
Court held that this did not impermissibly burden the defendant's article I, section 7 right
to testify on his own behalf, because it went to his credibility. Jd; see also Portuondo v.
Aoard. 529 U.S. 61, 69, 120 S. Ct. 1119, 146 L Ed. 2d 47 (2000) (holding that similar
cross-examination did not violate the defendant's rights under the Sixth Amendment).
How this case opens the door to allow comment on the defendant's exercise of the
constitutional right to refuse consent to a warrantless search is unclear, especially
considering the vitality of Burke and Jones. We do not find Martin useful, let alone
controlling here.


                                                11
No. 67377-7-1/12




nothing to hide, then "he should be giving up DNA samples right and left."4 This is the

same argument the Prescott court rejected—that if the defendant had nothing to hide,

he would consent to the search. 581 F.2d at 1352. And, the State makes this same

strained argument on appeal: "If Gauthier had in truth had consensual sexual

intercourse with T.A., it would have made no sense to withhold his DNA—identification

would be irrelevant." But, if identification were irrelevant, then Gauthier's prior refusal to

take the identifying test was also irrelevant, because Gauthier admitted to intercourse

with T.A.


       Moreover, Gauthier did not make any false claims on direct examination about

his refusal to provide DNA evidence, which would have allowed the prosecutor to

impeach his testimony on that basis. Rather, Gauthier testified that he tried to get in

touch with the King County Sheriffs Office when he heard they were looking for him.

He explained that he spoke with Detective Knudsen on the phone.             He testified that

Knudsen told him about his DNA on the sleeve of a reported rape victim and explained

the gravity of the situation. No other testimony was elicited on direct about Gauthier's

conversation with Knudsen.      He never said that he fully cooperated with Knudsen or

that he agreed to provide his DNA immediately upon request.

       But, on cross-examination, the prosecutor asked Gauthier numerous questions

about his phone conversation with Detective Knudsen. Gauthier admitted that Knudsen

let him speak and take his time to answer questions. Then the prosecution asked, "And



       4 The court apparently allowed her to bring out this evidence in cross-
examination, because it thought Gauthier did not have a constitutional right to refuse
consent.



                                                 12
No. 67377-7-1/13




he also asked if you would provide a DNA sample, right?" Gauthier responded, "Yes."

Then the prosecution followed up, "And isn't it true that you told him no, I'm not going to

provide. Initially you said you would and then . . . ." Gauthier denied that he initially

agreed to provide a DNA sample. The prosecutor then proceeded for two more pages

in the record to ask about Gauthier's refusal to provide his DNA upon the advice of

counsel. And, the prosecutor reiterated Gauthier's refusal on cross the following day,

"Yesterday you told us that you recalled the conversation with Detective Knudsen as in

part you saying no way, no how am I going to provide a DNA sample."

       Evidence of Gauthier's refusal did not impeach any of his testimony invited on

direct examination.         Rather, the prosecutor elicited the testimony for the primary

purpose of encouraging the jury to infer guilt based on Gauthier's refusal to provide a

DNA sample.      She had made this intention explicit during pretrial motions.     If such

evidence is admissible for impeachment every time the defendant's version of events is

different from the State's—as the State implied at oral argument—it would eviscerate

any protection from warrantless searches the Fourth Amendment and article I, section 7

provide.   This was not impeachment and therefore cannot save the State from the

constitutional violation.


 "I.   Harmless Error


       The question remains whether the error was harmless. We find constitutional

error harmless only if convinced beyond a reasonable doubt that any reasonable jury

would reach the same result absent the error, and where the untainted evidence is so

overwhelming that it necessarily leads to a finding of guilt. Burke. 163 Wn.2d at 222.




                                                  13
No. 67377-7-1/14




Where the error is not harmless, the defendant must have a new trial. State v. Easter,

130 Wn.2d 228, 242, 922 P.2d 1285 (1996).

       in Burke, also a rape case, the entire trial boiled down to whether the jury

believed or disbelieved Burke's story. 163 Wn.2d at 222. There, repeated references

to Burke's silence as evidence that he had something to hide undermined his credibility

as a witness. Jd at 222-23. The same is true here.         Gauthier's trial boiled down to

whether the jury believed his story about prostitution gone bad or T.A.'s story that he

forced her to perform a sex act. DNA evidence on T.A.'s jacket sleeve supported both

her version and Gauthier's version of events.         The tampon found at the scene

corroborated T.A.'s version of events, but the area of flattened grass supported both

stories.   And, T.A.'s other testimony could support either version of the facts.      For

instance, she claimed she was afraid after the alleged rape, but then grabbed a knife

and went back out late at night to hunt down and kill her attacker. This is consistent

with anger for being stiffed for payment for the sexual act or with being raped. She also

did not ask her sister or Brown to call the police the night of the incident, though she

had ample opportunity to do so.

       The prosecutor repeatedly undermined Gauthier's credibility by referencing his

refusal to consent to the DNA test. She explicitly told the jury that Gauthier's refusal to

consent was consistent with someone who is guilty.         In light of these inflammatory

statements, we cannot say beyond a reasonable doubt that the jury would reach the

same result absent the error. We hold that the error was not harmless.




                                                14
No. 67377-7-1/1



      In the alternative, Gauthier asserts ineffective assistance of counsel and

prosecutorial misconduct. He also filed a statement of additional grounds. Because we

find the constitutional issue dispositive, we need not reach Gauthier's alternative

arguments.

      We reverse.




WE CONCUR:




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