State v. Burke, 78528-7.

• Court: United States State Supreme Court of Washington
• Writing for the Court: Chambers
• Citation: 163 Wash.2d 204,181 P.3d 1
• Parties: STATE of Washington, Respondent, v. Justin Bryce BURKE, Petitioner.
• Docket Number: No. 78528-7.,78528-7.
• Decision Date: 13 March 2008

181 P.3d 1 163 Wash.2d 204 STATE of Washington, Respondent,
v.
Justin Bryce BURKE, Petitioner. No. 78528-7. Supreme Court of Washington, En Banc. Argued March 20, 2007. Decided March 13, 2008.

[181 P.3d 3]

John Henry Browne, Emma C. Scanlan, Law Offices of John Henry Browne, PS, Seattle, WA, for Petitioner/Appellant.

Thomas Marshal Curtis, Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, for Appellee/Respondent.

CHAMBERS, J.

¶ 1 Justin Burke went to a party. There he met and had sex with J.S. J.S. was 15 years old at the time and Burke was 22. He was later charged with third degree rape of a child. At trial, Burke argued that J.S. had told him that she was of legal age to consent, and he reasonably believed her. This would present a statutory defense to third degree rape of a child. As part of its case in chief, the State contended that Burke, when given an opportunity to tell his side of the story, terminated his interview with the police without ever mentioning that he believed J.S. was of age.

¶ 2 Our constitutions protect the right of an accused to remain silent. Griffin v. California, 380 U.S. 609, 614-15, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); State v. Easter, 130 Wash.2d 228, 235, 922 P.2d 1285 (1996). When defendants take the stand, their prearrest silence may be used to impeach their testimony, "but their silence may not be used as substantive evidence of guilt. See State v. Clark, 143 Wash.2d 731, 756, 24 P.3d 1006 (2001). A mere reference to a defendant's silence may be permissible. Because the State invited the jury to infer guilt from Burke's silence, and attempted to use his silence as substantive evidence of his guilt, we reverse the courts below and vacate Burke's conviction, without prejudice.

I

¶ 3 J.S.'s older sister, Jaime, and her friend, Chelsea, shared a basement apartment in the home of Chelsea's father. Chelsea's younger sister and J.S.'s friend, Carleen, lived in the upper part of the house.

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With their father out of town, Chelsea and Carleen decided to have a party in their respective portions of the house. J.S. was invited to the upstairs party, and Burke was invited to the downstairs party. The younger and older groups mingled and many there consumed marijuana and alcohol. Burke and J.S. ended up sitting together on a couch late at night.

¶ 4 At some point, Jaime left the party to spend the night elsewhere. A friend told her the next day that Burke and J.S. had been "all over each other." 3 Report of Proceedings (RP) at 173. Jaime approached her sister about this. J.S. told Jaime that Burke had made repeated advances, which she resisted, but that they had indeed had sex. Jaime confronted Burke, who confirmed that he had had sex with J.S. but asserted it was consensual.

¶ 5 The police were notified and as part of their investigation they visited Burke at his home. Burke told the officers that he had consensual sex with a girl he knew only as Jaime's sister, who "was younger than he thought she was." Id. at 212. When asked how old she was, he replied he "did not know, but that he knew she was in high school." Id.

¶ 6 At about this point, Burke's father intervened to ask the police if his son would be charged. When told that it was "very possible," the father advised Burke not to talk to the police until counsel had been consulted. Id. at 213. Burke asked the police if this was possible and was told "yes, [you can] speak to an attorney." Id. at 214. As the police were leaving, Burke said, "he thought that this was a bunch of shit, that girls at Edmonds Woodway [high school] were always trying to get guys in trouble." Id.

¶ 7 The police were asked at trial if Burke ever explained his last comment. An officer testified that "[a]t that time he had already asked pretty much to talk to an attorney, or what I interpreted as, so I did not ask anymore questions.... I believed that at that point when Justin asked me if that was possible, that that was kind of his way of stopping the interview." Id. at 214-15.

¶ 8 Burke was charged with RCW 9A.44.079, rape of a child in the third degree. Burke did not dispute the victim's age or deny he had intercourse with her. But under Washington law, if the defendant "reasonably believed the alleged victim to be [16 years old] based upon declarations as to age by the alleged victim," the defendant is not guilty. RCW 9A.44.030(2). Burke asserted this defense, arguing he asked J.S. what year she was in school and how old she was as an icebreaker. He claimed she told him she was 16, about to turn 17.

¶ 9 The State sought to undermine Burke's defense on the theory that if J.S. really told him she was 16, he would have said so either to the police at the first interview or when J.S.'s sister called him the next day furious with him. The State made these arguments in its opening and closing arguments to the jury and stressed Burke's silence in both direct examination of the investigating officers and in cross examination of Burke himself.

¶ 10 For example, in its opening, the State argued:

And for a time the defendant talked to them [police], freely telling them, yeah, I don't remember what her name was, but it was [Jaime's] sister, and yes, we had sex. And then interestingly the, defendant's father cut in, perhaps sensing that things, that the police there and perhaps sensing that it wasn't necessarily okay to have sex with [J.S].... [T]he defendant's father in effect ended the interview by telling the defendant, his own son, that he shouldn't be talking to police. And that pretty much did end the interview....

[The police] were there to gather the defendant's side of the story. That is all he chose to give them and they left.

3 RP at 11. During its case in chief, the State questioned Detective Richardson:

Q. What happened next?

A. Then at that point Justin's father basically came into the room and asked if any charges were going to be filed in the case.

Q. Asking you this question?

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A. Yes. And I told him it's very possible that charges would be filed.

. . . .

A. Okay. Father advised Justin not to make any other statements until he spoke to an attorney. And then Justin asked me if that was possible. And I told him that yes, he could speak to an attorney.

Q. After you advised him of that, did he have anymore words for you?

A. Then he made a statement that he thought that this was a bunch of shit, that girls at Edmonds Woodway were always trying to get guys in trouble.

Q. Did he ever explain that to you?

A. At that time he had already asked pretty much to talk to an attorney, or what I interpreted as, so I did not ask anymore questions. That was kind of his —

Q. That was his parting shot?

A. Yeah, his parting statement, I guess....

. . . .

Q. And so the defendant didn't need to be advised of his Constitutional Rights, but you felt as though, at that time, he had said enough about an attorney that you didn't feel you should ask him anymore questions?

A. Yeah, at that point basically it was a voluntary interview and I felt that with his father interjecting into the conversation and saying that Justin, don't make anymore statements until you talk to an attorney, I believed that at that point when Justin asked me if that was possible, that that was kind of his way of stopping the interview. 3 RP at 213-15. During cross examination, the prosecutor asked Burke directly to explain why he failed to say that he thought J.S. was 16 at the time of the police interview. The point was returned to during closing arguments. Burke was found guilty of statutory rape.

¶ 11 Burke moved for a new trial, arguing the prosecutor violated his right to silence by commenting on his father's advice to end the interview and his failure to report to police J.S.'s alleged declaration of her age. The trial court denied his motion. Burke unsuccessfully appealed to the Court of Appeals. We granted review. State v. Burke, 158 Wash.2d 1019, 149 P.3d 378, 2006 Wash. LEXIS 900.

II

¶ 2 Burke's unsuccessful motion for a new trial was premised on the theory that the State violated his right to silence under the Fifth Amendment to the United States Constitution¹ and article I, section 9 of the Washington State Constitution.² We traditionally review denials of a motion for a new trial for abuse of discretion. State v. Marks, 71 Wash.2d 295, 302, 427 P.2d 1008 (1967). Among other things, discretion is abused if it is exercised on untenable grounds or for untenable reasons, such as a misunderstanding of the underlying law that causes nonharmless error in the trial. Broom v. State, 150 Wash.2d 689, 706, 81 P.3d 851 (2003).

¶ 13 Burke argues that the prosecutor improperly invited the jury to infer guilt from his exercise of the constitutional right to remain silent.³ The State argues that Burke did not clearly and unequivocally exercise his right to remain silent, and at most, Burke was only partially silent. The dissent argues we should not review this

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issue because Burke did not preserve the error by objecting at trial and there is no manifest constitutional error. See RAP 2.5(a)(3). However, neither party addresses manifest constitutional error for several reasons. First, although there was no contemporaneous objection, the issue was raised in the trial court through a postverdict motion for a new trial. The trial court decided the motion on the merits despite the lack of objection. The Court of Appeals also reached the merits of the issue. Therefore, we presume the issue is properly before us and reach the merits of the case.

¶ 14 We will first briefly review when the State may raise, the defendant's silence during a criminal trial. In 1926, the United States Supreme Court held that a defendant who elected to testify could be questioned about his prior silence at a previous trial on the same charges. Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926). Raffel was indicted for...