State v. Alvarez
| Decision Date | 17 September 2019 |
| Docket Number | No. 35567-5-III,35567-5-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JEREMY JOSEPH ALVAREZ, Appellant. |
LAWRENCE-BERREY, C.J. — A jury found Jeremy Alvarez guilty of one count of second degree rape of a child and acquitted him of another. He appeals, and asserts three arguments for reversal of his conviction. In a statement of additional grounds for review, he asserts over 20 grounds for reversal. We reject his arguments.
Alvarez also requests that we order the trial court to strike several community custody conditions and to strike the $200 criminal filing fee. We partly agree and direct the trial court to strike some of the contested community custody conditions and the criminal filing fee.
Alvarez, unable to find a place to live, moved in with his father (Mr. Alvarez), his father's fiancé (Ms. Porter), and her daughter (J.P.). Alvarez was 26, and J.P. was 13.
Several days after he moved in, Alvarez came to J.P.'s room around midnight and asked if she wanted to watch a movie. J.P. agreed because she was not sleeping well. They sat on the couch in the living room. Alvarez asked to sit closer to J.P., but she refused. Alvarez scooted over anyway. J.P. later claimed that Alvarez touched her breast and vaginal areas.
After a while, J.P. went upstairs to her bedroom. Fifteen minutes later, Alvarez came upstairs and entered her bedroom. Alvarez began rubbing lotion on J.P.'s feet and then her legs. Alvarez kept moving farther up J.P.'s legs until he touched her vagina. Alvarez then inserted his fingers and used his tongue on J.P.'s vagina. Eventually, J.P. asked him to stop and leave, which he did. The entire event lasted about an hour and one-half. J.P. went to school the next day and reported the incident to her counselor, Lisa Ulrich.
Officer Jory Parish, a resource officer at Hanford High School, received a call from Lisa Ulrich. While interviewing J.P., Officer Parish learned the incident occurred in Pasco, so she contacted Pasco police.
City of Pasco Police Officer Michael Nelson responded. After speaking with Officer Parish, Officer Nelson spoke with J.P. J.P. generally reported that she had engaged in a sexual act with an individual named Jeremy. After that, Officer Nelson drove to Ms. Porter's employment to inform her what J.P. reported. While there, Officer Nelson also spoke with Mr. Alvarez on the telephone, who was out of town. Mr. Alvarez asked Officer Nelson to make sure that his son was out of the home when he returned later that day. Officer Nelson drove to the home, told Alvarez about J.P.'s accusation, and told Alvarez that his father had directed him to leave the home. Alvarez left.
Later that evening, J.P. and Ms. Porter returned home. Ms. Porter collected the pants, underwear, and bra J.P. wore the night before. The underwear was in the laundry basket. One item in the basket, a towel, had been previously used by Alvarez. Detective Jesus Romero collected J.P.'s clothing from Ms. Porter. Later, Mari Murstig, a child forensic interviewer, met with and interviewed J.P.
The State charged Alvarez with one count of rape of a child in the second degree. After unsuccessful plea negotiations, the State added a second charge of rape of a child in the second degree.
At trial, the State's first witness was Officer Nelson. He testified that when he met with Alvarez at the house, Alvarez appeared to have just awakened. The State askedOfficer Nelson whether he told Alvarez about J.P.'s allegation, and how Alvarez reacted. Alvarez objected, and requested a sidebar. Alvarez argued that the question called for improper testimony because the testimony would comment on Alvarez's right to remain silent. The State clarified that it was only eliciting testimony about Alvarez's facial expression, not about his silence or his right to remain silent. The trial court agreed, and allowed the testimony. Officer Nelson testified that when he told Alvarez of J.P.'s allegation, Alvarez 2 Report of Proceedings (RP) at 345.1
The State next called Ms. Murstig. She testified that she reviewed Officer Nelson's report before she interviewed J.P. When the State asked Ms. Murstig whether J.P.'s disclosures to her were consistent with Officer Nelson's report, Alvarez objected on the basis of hearsay, that it called for improper opinion testimony, and that it would not be helpful to the trier of fact. The trial court overruled Alvarez's objections and allowed the testimony. Ms. Murstig testified that J.P.'s disclosures in the interview with her were consistent with J.P.'s disclosures to Officer Nelson.
The State also called J.P. She testified about the downstairs and the upstairs incidents. Her testimony about the downstairs incident was inconsistent. She originally testified that Alvarez touched her breasts and her vagina over her clothing as they watched a movie. The State later showed her a videotape of a prior interview she had given. After this, J.P. testified that during the movie, Alvarez had touched her underneath her clothes and had inserted a finger inside her vagina.
Kaylene Folks, a forensic scientist with the Washington State Patrol Crime Laboratory, tested J.P.'s underwear recovered from the laundry basket. She testified that the inside crotch area tested positive both for human saliva and human male DNA.2 She explained that the saliva found on the inside crotch of the underwear was deposited wet. This made it highly improbable that the saliva could have been transferred from Alvarez's discarded towel in the laundry basket.
She also testified that the body fluid found on the inside crotch of J.P.'s underwear could only have been saliva. She explained she used the Phadebas test, which shows a positive result only if the substance tested has a high concentration of the enzyme amylase. Saliva has an amylase concentration about 1,000 times higher than other bodily fluids. And although body fluids other than saliva contain amylase, "they are in . . .concentrations much lower than those having saliva [and] wouldn't be detected by this Phadebas test." RP at 524.
The jury found Alvarez not guilty of the downstairs charge, but guilty of the upstairs charge. At sentencing, the trial court imposed a sentence of 110 months and entered multiple community custody conditions.
Alvarez timely appealed.
Alvarez contends the State improperly elicited testimony on his prearrest silence, violating his constitutional right.
The State first argues that demeanor—lack of surprise or shock—is not silence. The State fails to cite authority to support its argument. Demeanor is not always silence. Anger or embarrassment do not denote silence. But a lack of emotion is sufficiently similar to silence that any difference is without a distinction. We reject the State's first argument.
The State next argues that the United States Supreme Court has recently clarified that the right to remain silent does not arise, prearrest, until one invokes it. And because state and federal constitutional provisions against self-incrimination are coextensive, tothe extent prior Washington decisions are inconsistent, those decisions no longer are good law.
In response to this, Alvarez urges this court to perform a Gunwall3 analysis; that is, to analyze the issue under independent Washington State constitutional principles. We decline to do so. Prior authority from our high court constrains our conclusion that the state and federal constitutional provisions on this issue are co-extensive.
When a claim is asserted under both the Washington Constitution and the United States Constitution, the first inquiry is whether the asserted right is more broadly protected under the state constitution rather than its federal counterpart. State v. Earls, 116 Wn.2d 364, 374, 805 P.2d 211 (1991). Washington courts have long held that the protections of article I, section 9, are "coextensive with, not broader than, the protection of the Fifth Amendment [to the United States Constitution]." Id. at 374-75 (citing State v. Moore, 79 Wn.2d 51, 57, 483 P.2d 630 (1971)). Because the Washington Constitution does not provide broader protections, a Gunwall analysis is unnecessary, and we begin our analysis with federal law. Id.
The Fifth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, generally prohibits the State fromcommenting about the defendant's failure to speak. State v. Easter, 130 Wn.2d 228, 238-39, 922 P.2d 1285 (1996). However, the United States Supreme Court has recently addressed the difference between prearrest and postarrest silence in Salinas v. Texas, 570 U.S. 178, 133 S. Ct. 2174, 186 L. Ed. 2d 376 (2013).
In Salinas, the defendant agreed to speak with officers about a murder investigation, but when the officers questioned the defendant on whether the shell casings from the crime scene would match the defendant's firearm, the defendant "'[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched his hands in his lap, [and] began to tighten up.'" Salinas, 570 U.S. at 182. Eventually, more evidence led to the defendant's arrest. Id. At trial, the defendant did not testify. Id. However, the State used the defendant's reaction to the officer's interview question about the shell casings as evidence of the defendant's guilt. Id.
In a plurality decision, the Court found that, unless a defendant expressly invokes the privilege, the State can use a defendant's prearrest silence as evidence of guilt and it would not violate the Fifth Amendment. Id. at 186; see also State v. Terry, 181 Wn. App. 880, 888, 328 P.3d 932 (2014); State v. Magana, 197 Wn. App. 189, 195, 389 P.3d 654 (2016), abrogated on other grounds by, State v. Johnson, 4 Wn. App. 2d 352, 421 P.3d 969, review denied, 192 Wn.2d 1003, 430...
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