State v. Gauthier

Decision Date01 April 2013
Docket NumberNo. 67377–7–I.,67377–7–I.
Citation174 Wash.App. 257,298 P.3d 126
PartiesSTATE of Washington, Respondent, v. Thomas M. GAUTHIER, Appellant.
CourtWashington Court of Appeals


Jennifer J. Sweigert, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Deborah A. Dwyer, King Co. Pros. Ofc./Appellate Unit, Seattle, WA, for Respondent.


[174 Wash.App. 259]¶ 1 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.


¶ 2 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.

¶ 3 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 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.

[174 Wash.App. 260]¶ 4 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.

¶ 5 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.

¶ 6 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.

¶ 7 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.

¶ 8 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.

¶ 9 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.

¶ 10 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 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.

¶ 11 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 prostitutiongone 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.”

¶ 12 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.

¶ 13 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 [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.


¶ 14 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 Wash.2d 918, 926–27, 155 P.3d 125 (2007). The defendant must show how the alleged error actually affected his rights at trial. Id. at 926–27, 155 P.3d 125. If we determine that the claim raises a manifest constitutional error, it may still be subject to harmless error analysis. Id. at 927, 155 P.3d 125.

I. Manifest Constitutional Error

¶ 15 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 Constitution. State v. Garcia–Salgado, 170 Wash.2d 176, 184, 240 P.3d 153 (2010); State v. Curran, 116 Wash.2d 174, 184, 804 P.2d 558 (1991), overruled on other grounds by State v. Berlin, 133 Wash.2d 541, 947 P.2d 700 (1997). Because taking a DNA sample constitutes a search, a warrant or court order is first required. Garcia–Salgado, 170 Wash.2d at 184, 186, 240 P.3d 153. 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 Wash.2d 1, 13, 123 P.3d 832 (2005).

¶ 16 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. Id. at 1347. She refused to let the police in without a warrant. Id. The police eventually kicked the door in, found the suspect hiding inside, and charged Prescott as an accessory after the fact. Id. At trial, the prosecution introduced Prescott's refusal to allow the warrantless search as evidence of the charged offense. Id. at 1350.

¶ 17 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. Id. at 1351. This is so, the court explained, regardless of the individual's motivations. Id. at 1351...

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    ...a warrant is impractical since the delay will cause the destruction of DUI evidence.¶4 Relying on McNeely and State v . Gauthier, 174 Wash.App. 257, 298 P.3d 126 (2013), the trial court in each case held the defendants had a constitutional right to refuse consent to the warrantless breath t......
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  • City of Vancouver v. Kaufman
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    • October 15, 2019
    ...Amendment because it improperly penalizes the defendant for the lawful exercise of a constitutional right. State v. Gauthier , 174 Wash. App. 257, 267, 298 P.3d 126 (2013). Thus, if Kaufman had a constitutional right to refuse the search of her breath by use of a PBT because the test, if ta......
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1 books & journal articles
  • Interrogations, confessions and other statements
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • March 30, 2017
    ...of guilty knowledge or consciousness of guilt,” but it can be used for other purposes); State v. Gauthier, 174 Wn. App. 257, 265-66, 298 P.3d 126, 131 (2013) (noting that five federal courts of appeals and 15 states forbid use of a defendant’s refusal to consent to search as evidence of gui......

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