State v. Davis

• Decision Date: 04 September 1984
• Docket Number: No. 12209-6-I,12209-6-I
• Citation: 38 Wn.App. 600,686 P.2d 1143
• Parties: STATE of Washington, Respondent, v. Brian Robert DAVIS, Appellant.
• Court: Washington Court of Appeals

Page 600

38 Wn.App. 600

686 P.2d 1143

STATE of Washington, Respondent, v. Brian Robert DAVIS, Appellant.

No. 12209-6-I.

Court of Appeals of Washington Division 1.

Sept. 4, 1984.

Reaugh & Prescott, Carol Hepburn, Seattle (court-appointed), for appellant.

Norman K. Maleng, King County Pros. Atty., Reba Weiss, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

Brian Robert Davis was found guilty of malicious mischief in the third degree at a juvenile court fact-finding hearing. He appeals, contending the trial judge impermissibly relied on his postarrest silence in reaching a finding of guilt. We reverse.

Two Federal Way residents observed one of a group of juveniles shoot out a street light with an air pistol. The two gave chase but abandoned the effort and called the police. After the police arrived and detained a group of juveniles some distance away, one of the residents identified Davis as the offender. The police arrested Davis, who at that time made no statement implicating himself or anyone else. The record fails to indicate whether Davis was advised of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).

Davis and the other members of the group testified that they were walking in the area when the incident occurred and saw an unidentified boy with an air rifle. At the end of the State's cross examination, the trial judge asked Davis whether he had given this exculpatory story to the police upon his arrest. Davis responded that he had not. During closing argument, the prosecutor made reference to the failure of Brian and the other boys to relate the exculpatory information to the police at the time of their detention and Brian's arrest. In making its finding of guilt, the trial court stated:

The officers then stopped the parties, boys, and talked to them, ultimately one of them was arrested. At the time of the arrest there was no outburst of indignation by the other teenagers, and I find that a little bit strange, frankly. I know they have a right to silence, I also know that most teenagers profess loudly and clearly when they are unjustly criticized or accused of something. I find it particularly strange that Brian, who was arrested and taken in the car, didn't say somebody else did it at that particular time. It was not until we get here. I am convinced beyond a reasonable doubt that Brian was the one the date in question, the identification is sufficient in my judgment, and I am going to enter a finding of guilty.

The sole question here is whether a defendant's constitutional rights are violated when the trier of fact relies upon his postarrest silence in making a finding of guilt. ¹ Counsel for Davis and for the State argue from the premise that Davis was not advised of his Miranda rights following his arrest and we proceed from this premise in our analysis. Davis contends that the trial court's reliance upon his postarrest silence violated his constitutional rights to due process and to remain silent. The State responds that the silence of an arrested defendant who has not been given Miranda warnings may be used against him for purposes of impeachment. The State relies on the per curiam opinion of the United States Supreme Court in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982).

RIGHT TO DUE PROCESS

Our consideration of this issue starts with United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), a federal prosecution for robbery occurring in the District of Columbia. Hale was arrested shortly after the robbery, advised of his right to remain silent, and searched. The police found $158 in his possession. Hale did not respond to police questions as to where he got the money. At trial, Hale testified to an alibi defense. On cross examination the prosecutor caused Hale to admit that he had not offered this exculpatory information to the police at the time of his arrest. The court stated:

Not only is evidence of silence at the time of arrest generally not very probative of a defendant's credibility but it also has a significant potential for prejudice. The danger is that the jury is likely to assign much more weight to the defendant's previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.

As we have stated before: "When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out." Shepard v. United States, 290 U.S. 96, 104, [54 S.Ct. 22, 78 L.Ed. 196] (1933). We now conclude that the respondent's silence during police interrogation lacked significant probative value and that any reference to his silence under such circumstances carried with it an intolerably prejudicial impact.

Accordingly, we hold that under the circumstances of this case it was prejudicial error for the trial court to permit cross-examination of respondent concerning his silence during police interrogation, and we conclude, in the exercise of our supervisory authority over the lower federal courts, that Hale is entitled to a new trial.

(Footnote omitted). Hale, 422 U.S. at 180-81, 95 S.Ct. 2138-39. All justices concurred in the opinion, but Justices Douglas and White separately expressed their views that the federal due process clause is violated when the prosecution calls attention to the silence of the accused at the time of arrest.

Following Hale, the U.S. Supreme Court decided in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that the use of a criminal defendant's postarrest silence to impeach an exculpatory story given at trial violates due process when the defendant's silence follows Miranda warnings. The court reasoned that it would be fundamentally unfair to allow impeachment use of postarrest silence because the Miranda warnings implicitly assure the arrestee that silence will carry no penalty. Doyle, 426 U.S. at 618, 96 S.Ct. at 2245. In State v. Fricks, 91 Wash.2d 391, 588 P.2d 1328 (1979), our State Supreme Court followed Doyle and extended its holding to prohibit both impeachment and substantive use of postarrest silence following Miranda warnings. See also, State v. Evans, 96 Wash.2d 1, 633 P.2d 83 (1981).

Then came Fletcher v. Weir, supra, a per curiam opinion of the U.S. Supreme Court decided without oral argument. Fletcher holds that, in the absence of Miranda warnings, the federal due process clause does not prohibit the use of a defendant's postarrest silence for impeachment purposes. The court found that the fundamental unfairness present in Doyle was absent in Fletcher because no governmental action, i.e., the reading of Miranda warnings, induced the defendant's silence. The court concluded that without "the sort of affirmative assurances embodied in the Miranda warnings, ... it [does not] violate[ ] due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." Fletcher, 455 U.S. at 607, 102 S.Ct. at 1312.

Fletcher is controlling on Davis' federal due process claim. Davis also alleges, however, a violation of our state due process clause, Const. art. 1, § 3. It is well established that state courts have the power to interpret their state constitutional provisions as more protective of individual rights than the parallel provisions of the United States Constitution. State v. Simpson, 95 Wash.2d 170, 177, 622 P.2d 1199 (1980); State v. Ringer, 100 Wash.2d 686, 674 P.2d 1240 (1983). Because the language of our state due process clause is virtually identical with that of the federal due process clause, ² federal cases are entitled to great weight. They are not, however, controlling. Young v. Konz, 91 Wash.2d 532, 539, 588 P.2d 1360 (1979); Olympic Forest Products, Inc. v. Chaussee Corp., 82 Wash.2d 418, 422, 511 P.2d 1002 (1973). ³

We decline to follow Fletcher in construing the state due process clause for two reasons. Limiting the exclusion of postarrest silence to instances where Miranda warnings are given would penalize the knowledgeable defendant who has not been advised of his rights. Such a rule also has the potential to discourage the reading of Miranda warnings. ⁴

Studies suggest that knowledge of the rights embodied in the Miranda warnings is extensive. Comment, Fourteenth Amendment-Due Process: The Impeachment Use of Post-Arrest Silence Which Precedes the Receipt of Miranda Warnings, 73 J. of Crim.Law & Criminology 1572, 1587 (1982). There is no logic in protecting a defendant advised of his rights and not an unadvised defendant. Both defendants are exercising the same constitutional right. The arrest itself is governmental action which enshrouds a defendant with the constitutional right to remain silent. A suspect's fears upon arrest, combined with the widespread knowledge of the right to remain silent, will often result in the defendant remaining silent.

Adopting the position advanced by the State might also encourage police to delay reading Miranda warnings or to dispense with them altogether to preserve the opportunity to use the defendant's silence against him. A constitutional guarantee designed to protect society from improper police conduct becomes meaningless when it may be obviated by law enforcement officials improperly withholding the Miranda warnings. We decline to adopt such a rule of law. We hold that the use of a defendant's postarrest silence, regardless of whether such silence follows Miranda warnings, is fundamentally unfair and violates the due process clause of the Washington Constitution, art. 1, § 3.

Accordingly, we need not consider Davis' contentions that use of his postarrest silence violated the privilege against compelled self-incrimination guaranteed by the fifth amendment to the United States Constitution ...