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                                                                                STATE OF WASHINGTON

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    IN THE COURT OF APPEALS OF THE STATE OF WASH 1'                                                   TON


                                             DIVISION II

 STATE OF WASHINGTON,                                                      No. 44259 -1 - II


                                   Respondent,


         v.

                                                                       PUBLISHED OPINION
 JARED ALLAN PINSON,


                                   Appellant.




         MAXA, J. —     Jared Allan Pinson appeals his second degree assault conviction ( domestic


violence),    claiming that prosecutorial misconduct deprived him of a fair trial. We hold that ( 1)

the prosecutor engaged in misconduct by arguing in closing that Pinson' s failure to respond to

police questioning was evidence of his guilt, in violation of the constitutional right against self -

incrimination; ( 2) although Pinson did not object to the prosecutor' s argument, he did not waive


his prosecutorial misconduct claim because an instruction would not have cured the prejudice;


and ( 3) the misconduct resulted in prejudice that had a substantial likelihood of affecting the

jury' s verdict. Accordingly, we reverse and remand for a new trial.

                                                 FACTS


         On July 29, 2012, Mason County Sheriff' s Deputy Joel Nault responded to a reported

domestic violence incident in Shelton. He contacted Stacey Campbell, who was in a parking lot

across the street from her residence. She told Deputy Nault that Pinson had awakened her,

thrown   her   off the couch where she was   sleeping,   and pulled   her to the floor   by   her   neck.   She
44259 -1 - II



said she feared for her life, could not breathe, escaped and ran out the door, and called 911.

Deputy Nault described Campbell as hysterical, sobbing, and holding her neck, where he noticed
red markings.


         Deputy Nault and another officer went to Pinson' s house. When Pinson appeared, they

put him in handcuffs and took him to the front porch. Pinson was cooperative and allowed the

officers to talk with him. Pinson explained that he and Campbell had been drinking with friends

and got into a fight. When Deputy Nault asked if the fight was verbal or physical, Pinson did not

respond. The State charged Pinson with second degree assault ( domestic violence).

         The trial court ruled in limine that the State could not ask Deputy Nault about Pinson not

answering the question of whether the fight was physical. However, defense counsel asked

Deputy Nault that question during cross -examination. The trial court ruled that this inquiry

opened the door for the State to ask about Pinson' s response to Deputy Nault. The prosecutor

subsequently elicited testimony from Deputy Nault that when he asked Pinson if the fight got

physical, Pinson became quiet. Defense counsel then had Deputy Nault confirm that Pinson had

no obligation to talk with him.


         Campbell testified that she and Pinson were in the seventh year of their relationship and

that she continued to love him. She testified that they had friends over for dinner that July night

and had been drinking, but she did not remember calling 911 or talking with the police. She

explained that the redness on her neck and chest depicted in police photographs was from her

drinking and crying, not from a physical assault.




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44259 -1 - II



          Pinson testified that he and Campbell had an argument that evening, but he did not want

to deal with it and went to bed instead. The next thing he recalled was the deputies yelling his

name and telling him to come down the stairs. Pinson stated that he did not answer Deputy

Nault' s question about whether the fight was physical because " it wasn' t going to help my

situation   any.   They' re   not   going to believe   me anyways, so   I just didn' t say anything." Report


of Proceedings ( RP) at 68.


          During closing argument, the State argued that Pinson' s silence when Deputy Nault

asked if the fight was physical was evidence of his guilt. Pinson did not object to this argument.

Defense counsel explained in closing argument that Pinson simply did not want to answer any

more questions, which was his right.


           The jury found that Pinson committed second degree assault and by special verdict that it

involved domestic violence. Pinson appeals.


                                                   ANALYSIS


A.         PROSECUTORIAL MISCONDUCT


           Pinson claims that the prosecutor committed misconduct when he urged the jury to treat

Pinson' s silence as substantive evidence of guilt. The prosecutor stated:


           The next question Deputy Nault asked [ Pinson] is did the fight get physical. And
           his answer to that is not to respond to it, which is evidence of his guilt, that he has
           something to hide, because as I think you all know from your common experience,
           if you were confronted late at night, woken up by two police officers who want to
           take you to jail and they confront you with that type of question, if you' re innocent,
           you' re going to have a wholly different response.

RP   at   94 ( emphasis   added).     We hold that this statement was improper because it violated

Pinson' s constitutional right against self -
                                            incrimination. We further hold that Pinson' s failure to




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44259 -1 - II



object at trial did not waive his prosecutorial misconduct claim because the misconduct was so

flagrant and ill intentioned that an instruction could not have cured the resulting prejudice, and

that the misconduct resulted in prejudice that had a substantial likelihood of affecting the verdict.

State v. Emery, 174 Wn.2d 741, 760 -61, 278 P. 3d 653 ( 2012).

         1.      Legal Principles


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

context of the record and all of the circumstances of the trial, the prosecutor' s conduct was both

improper      and prejudicial."      In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d

673 ( 2012).     We review the prosecutor' s conduct and whether prejudice resulted therefrom " by

examining that conduct in the full trial context, including the evidence presented, ` the context of

the total argument, the issues in the case, the evidence addressed in the argument, and the

instructions     given   to the   jury.' " State v. Monday, 171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011)

 internal     quotation marks omitted) (      quoting State v. McKenzie,. 157 Wn.2d 44, 52, 134 P. 3d 221

 2006)).


         When the defendant fails to object to the challenged portions of the prosecutor' s


argument, he is deemed to have waived any error unless the prosecutor' s misconduct was so

flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.

Emery,     174 Wn.2d      at   760 -61.   In making this determination, we " focus less on whether the

prosecutor' s misconduct was flagrant or ill intentioned and more on whether the resulting

prejudice could     have been       cured."   Emery, 174 Wn.2d at 762. The defendant must show that ( 1)

no curative instruction would have eliminated the prejudicial effect, and ( 2) the misconduct




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44259 -1 - II



resulted in prejudice that had a substantial likelihood of affecting the verdict. Emery, 174 Wn.2d

at 760 -61.


         2.     Improper Argument


         The Fifth Amendment to the United States Constitution                states   that "[   n] o person ...   shall




be   compelled   in any   criminal case   to   be   a witness against   himself." Article 1, section 9 of the


Washington State Constitution        states    that "[   n] o person shall be compelled in any criminal case to

give evidence against      himself." Both provisions guarantee a defendant the right to be free from


self -
     incrimination, including the right to silence. State v. Knapp, 148 Wn. App. 414, 420, 199

P. 3d 505 ( 2009). A defendant has the right to remain silent both prearrest and postarrest; i.e.,


both before and after a defendant is given Miranda' warnings. State v. Burke, 163 Wn.2d 204,

217, 181 P. 3d 1 ( 2008).


         When ( as here) the defendant testifies at trial, the State under certain circumstances can


use the defendant' s prearrest silence for impeachment.2 Burke, 163 Wn.2d at 217. However, our

Supreme Court has held that the State cannot use the defendant' s silence as substantive evidence


of guilt. Burke, 163 Wn.2d at 217. More specifically, it is improper for the State to make

closing arguments that infer guilt from the defendant' s silence. State v. Easter, 130 Wn.2d 228,

236, 922 P. 2d 1285 ( 1996). "[     W]hen the State invites the jury to infer guilt from the invocation

of the right of silence, the Fifth Amendment and article I, section 9 of the Washington

Constitution     are violated."   Burke, 163 Wn.2d at 217. As a result, the prosecutor' s argument that




1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

2 The State cannot use a defendant' s silence after Miranda warnings have been given even for
impeachment. Burke, 163 Wn.2d at 217.



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44259 -1 - II



Pinson' s silence could be used as substantive evidence of his guilt clearly was improper under

Washington law.


         However, the State argues that•the prosecutor' s argument was justified under Salinas v.

Texas,          U. S. ,    133 S. Ct. 2174, 186 L. Ed. 2d 376 ( 2013), where the United States Supreme


Court identified an exception to the common law rule that a defendant' s silence cannot be used

as substantive evidence of guilt. In Salinas, the defendant voluntarily agreed to answer a police

officer' s questions without           being   placed   in custody   or   receiving Miranda   warnings.   133 S. Ct. at


2178.    But he declined to answer one question by looking down at the floor and remaining silent.

Salinas, 133 S. Ct.       at   2178. The State used the defendant' s reaction to the officer' s question as


evidence of his guilt. Salinas, 133 S. Ct. at 2178.


         The Court held that before a defendant can rely on the privilege against self incrimination
                                                                                       -

he or she must invoke it. Salinas, 133 S. Ct. at 2179, 2184. The only exceptions to the

invocation requirement are that ( 1) a defendant need not take the witness stand to invoke the

privilege at trial, and ( 2) a defendant subject to a custodial interrogation or other governmental


coercion need not invoke the privilege. Salinas, 133 S. Ct. at 2179 -80. The Court refused to

create a third exception for when the defendant remains .silent and declines to answer a question.

Salinas, 133 S. Ct.       at   2181. " A suspect who stands mute has not done enough to put police on


notice   that he     is relying   on   his Fifth Amendment      privilege."     133 S. Ct. at 2182.


         The defendant in Salinas did not affirmatively invoke his right to remain silent. Salinas,

133 S. Ct. at 2180. And he could not rely on the second exception to the general rule requiring

invocation of the privilege because it was undisputed that the police interview was voluntary and

that he was free to leave at any time. Salinas, 133 S. Ct. at 2180. Accordingly, the Court held



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44259 -1 - II



that the State' s use of the defendant' s noncustodial silence as substantive evidence of guilt did

not violate the Fifth Amendment. Salinas, 133 S. Ct. at 2180.


         But Salinas does not apply here. Although Deputy Nault testified that Pinson allowed the

officers to talk with him, Pinson testified that at the time of the interview he had been handcuffed

and taken to the front porch. As a result, Pinson' s interrogation was custodial rather than

voluntary. See State         v.   Heritage, 152 Wn.2d 210, 218, 95 P. 3d 345 ( 2004) ( a suspect is in


custody when a reasonable person in the suspect' s position would feel his freedom.was curtailed
to the degree   associated        with   a   formal   arrest).   The Court stated in Salinas that " a suspect who is


subjected to the ` inherently compelling pressures' of an unwarned custodial interrogation need

not   invoke the     privilege."      Salinas, 133 S. Ct. at 2180 ( quoting Miranda, 384 U. S. at 467).

Accordingly, Burke applies, and it was improper for the State to use Pinson' s silence as evidence

of his guilt.


         3.     Waiver of Claim


         Because Pinson did not object to the prosecutor' s improper argument, he waived any

error unless the prosecutor' s misconduct was so flagrant and ill intentioned that an instruction

could not     have   cured     any resulting    prejudice.       Emery,   174 Wn.2d   at   760 -61.   A suitable curative


instruction may be able to alleviate any prejudice from a brief reference to a defendant' s silence.

Emery,    174 Wn.2d       at   761.    But here the prosecutor went beyond a mere reference to Pinson' s


silence. He deliberately and expressly told the jury that Pinson' s silence was evidence of his

guilt. Further, the prosecutor explained why refusing to answer the question showed that Pinson

was    guilty —because         an innocent person would have responded differently.




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44259 -1 - II



         We hold that a curative instruction would not have been effective in the face of this direct

and specific argument. Even if the trial court had instructed the jury that Pinson' s silence could

not be used as evidence of his guilt, the prosecutor' s argument was so prejudicial that such an


instruction would not have eliminated the prejudice. Therefore, Pinson did not waive his

prosecutorial misconduct argument.



         4.     Prejudice


         To prevail on his prosecutorial misconduct claim, Pinson must also show that the


misconduct resulted in prejudice that had a substantial likelihood of affecting the jury' s verdict.

Emery,       174 Wn.2d   at   761, 764   n. 14.   "`   The criterion always is, has such a feeling of prejudice

been engendered or located in the minds of the jury as to prevent a [ defendant] from having a fair

trial ?' "   Emery, 174 Wn.2d at 762 ( quoting Slattery v. City ofSeattle, 169 Wash. 144, 148, 13

P. 2d 464 ( 1932) ( alteration in original)).


         Here, the State had only indirect evidence that Pinson assaulted Campbell. Pinson denied

assaulting Campbell, and Campbell did not recall what happened that evening. The investigating

officers did not witness any assault. Instead, the State relied on statements Campbell made in her

911 calla and to police at the scene that Pinson had assaulted her. But there was evidence that

Campbell was intoxicated when she made those statements. The State presented evidence' that


Campbell' s neck and chest were red, but she testified that this redness did not come from an

assault but rather from her intoxication. As a result, the State' s case was not particularly strong.




3 The 911 call was played to the jury, but neither party included it in the appellate record. As a
result, we do not speculate whether the content of the 911 call would be sufficient to overcome
any   prejudice   resulting from the improper            argument.
44259 -1 - II




           In addition, an instructional error exacerbated the prosecutor' s improper comment. The


reasonable doubt instruction inadvertently omitted the sentence from WPIC 4. 01 that stated,

 The defendant has       no   burden   of   proving that   a reasonable    doubt   exists."   11 WASHINGTON


PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4. 01, at 85 ( 3d ed. 2008)


WPIC).       This instruction violated our Supreme Court' s directive that the trial courts use only

WPIC 4. 01 to instruct the jury on reasonable doubt. State v. Bennett, 161 Wn.2d 303, 318, 165
P. 3d 1241 ( 2007).     Because the jury was not informed that Pinson had no burden of proof, there

was a greater risk that prosecutorial misconduct would affect the verdict.


           In this context, the State' s argument that Pinson' s silence when asked if the fight turned


physical was evidence of his guilt was significant. The State essentially asked the jury to find

that Pinson' s silence was an admission of guilt, and argued that such an admission was sufficient

to convict him. We hold under the circumstances that this argument had a substantial likelihood


of affecting the jury' s verdict. As a result, we hold that Pinson sustained his burden of

establishing prosecutorial misconduct and that his conviction must be reversed.

B.         ADDITIONAL ARGUMENTS


           Pinson also argues that ( 1) the prosecutor engaged in misconduct by making statements

that the   evidence   did    not support, ( 2)   his attorney   provided   ineffective   representation, ( 3)   the trial


court' s reasonable doubt instruction omitted the required statement that Pinson had no burden of


proving that a reasonable doubt exists, and (4) the sentencing court erred in imposing fees for his

court appointed attorney. Because we reverse based on prosecutorial misconduct, we need not

address    these   issues.
44259 -1 - II



         We reverse and remand for a new trial.




 We concur:




   71

                         t

 HUNT, P. J




LEr;




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