State v. Henderson

• Citation: 100 Wash.App. 794,998 P.2d 907
• Decision Date: 12 May 2000
• Docket Number: No. 23330-4-II.,23330-4-II.
• Parties: STATE of Washington, Respondent, v. Martin Jay HENDERSON, a/k/a Martin Jay Davey, Appellant.
• Court: Court of Appeals of Washington

998 P.2d 907

100 Wash.App. 794

STATE of Washington, Respondent, v. Martin Jay HENDERSON, a/k/a Martin Jay Davey, Appellant.

No. 23330-4-II.

Court of Appeals of Washington, Division 2.

May 12, 2000.

Scott Montegu Charlton, Clallam County Deputy Pros. Atty., Port Angeles, for Respondent.

Rita Joan Griffith, Griffith & Cole, Pllc (Court Appointed), Seattle, for Appellant.

ARMSTRONG, C.J.

Martin Henderson was convicted as an accomplice in a robbery and attempted robbery of two men who agreed to give a ride to Kevin Early, an acquaintance of Henderson. Henderson admitted that he was in the car when the robbery occurred but denied participating. On appeal, Henderson contends that he was denied the right to a fair trial because the prosecutor commented on his right to remain silent and committed several instances of prosecutorial misconduct constituting cumulative error. We agree and accordingly reverse and remand for a new trial.

FACTS

In February 1998, two young men, Edward Countryman and John Zellmer, agreed to give Kevin Early a ride from Brinnon to Sequim for $200. Countryman drove, Zellmer sat in the passenger seat, and Early sat in the back of the car.

As the group approached Sequim, Early directed them to turn onto Chicken Coop Road. When they turned, they saw two women, Connie Rodgers and her daughter, walking along the road. Early said he knew the women and asked Countryman and Zellmer to give them a ride. When the group stopped at the cabin where Rodgers lived, Early went inside for approximately 20 minutes. Early returned to the car with a blonde man. During that time, Countryman and Zellmer sat in the car waiting for Early to return from the cabin. They could hear a fight going on inside between Rodgers and a man that was not Early.

According to Countryman and Zellmer, when Early returned he told them that he had their money but his friend, Martin Henderson, needed a ride to another friend's house. Along the way, Early yelled at them and said he had a gun at Countryman's back. He demanded that they turn over everything in their pockets. Countryman had $15, a check for his grandmother, and a traffic citation. Zellmer had no money. Neither Countryman nor Zellmer saw a gun. Early and Henderson got out of the car near the 7 Cedars Casino.

Henderson did not testify but, in his custodial statements to Detective Moores, he admitted being in the car. He said he left with Early after fighting with Connie Rodgers. He said his memory was foggy because he was drunk and was still thinking about the fight. He did remember that Early was yelling and intimidating the "kids" along the way and that there was some paper exchanged. He said the kids were "scared to hell" and "freaked out" but he denied thatanyone threatened to kill Countryman or Zellmer.

Both Countryman and Zellmer testified that before Early began yelling at them, Henderson said several times, "Do you want me to do it?" Early said, "No, I'll do it." Countryman thought, at the time, that they were referring to who would give directions. But shortly after this exchange, Early said he had a .357 aimed at their backs. Countryman and Zellmer both testified that Henderson said, "[J]ust do what he says" or "Just do what he tells you," and told them not to drive behind the casino because there were cameras. Zellmer testified that Henderson said, "we should take the car, too." On cross-examination, both Countryman and Zellmer were impeached with inconsistencies between their testimony and their statements to the police as to what Henderson said in the car.

ANALYSIS

A. Comment on Fifth Amendment Right to Remain Silent

Henderson first argues that the trial court erred in denying his motion for mistrial after the prosecutor asked Detective Moores whether Henderson had been asked to be tape-recorded during his interview. Henderson contends that this question and the officer's response were an improper comment on his Fifth Amendment right to remain silent.¹ Although we do not agree that the question was a "comment" on Henderson's right to remain silent, the reference was improper.

During direct examination, the prosecutor asked Detective Moores if he "ever asked Mr. Henderson if he would be tape recorded." Moores said, "Yes." Defense counsel objected immediately, and the jury was excused while the court heard arguments on the objection. Defense counsel's objection was based on Moores' testimony at the CrR 3.5 hearing. His testimony revealed that Henderson said, if the officer wanted to tape-record the interview, he wanted an attorney and did not want to talk. Defense counsel argued that the question implicated Henderson's right to remain silent and right to counsel.

The prosecutor gave two reasons why the question should be allowed. First, he argued that the question was relevant to demonstrate the credibility of the officer by showing that he was thorough in his investigative techniques. According to the prosecutor, "[w]ithout this information the jury might think this is a pretty sloppy detective." Second, the prosecutor said that the refusal to be recorded reflected on Henderson's credibility because "the defendant wants to talk but he doesn't want to be tape recorded."

The court sustained the objection, recognizing that "one inference would be that the defendant realized things were getting serious and chose not to talk further." Defense counsel then moved for a mistrial, arguing that the jury had already heard the question and could not disregard it or the 10-minute delay in which the issue was debated. The motion for mistrial was denied, and the court instructed the jury to disregard the question.

Washington courts have held that the Fifth Amendment prohibits the State from using the defendant's pre-arrest silence as substantive evidence of his guilt.²State v. Lewis, 130 Wash.2d 700, 705, 927 P.2d 235 (1996) (citing State v. Easter, 130 Wash.2d 228, 922 P.2d 1285 (1996)). Therefore, "[a] police witness may not comment on the silence of the defendant so as to infer guilt from a refusal to answer questions." Lewis, 130 Wash.2d at 705,927 P.2d 235; see Easter, 130 Wash.2d at 236,922 P.2d 1285. But "a mere reference to silence which is not a `comment' on the silence is not reversible error absent a showing of prejudice." Lewis, 130 Wash.2d at 706-07,927 P.2d 235 (quoting Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995)); State v. Sweet, 138 Wash.2d 466, 481, 980 P.2d 1223 (1999). "Comment" means that the State uses the accused's silence to suggest to the jury that the refusal to talk is an admission of guilt. Lewis, 130 Wash.2d at 707,927 P.2d 235 (citing Tortolito, 901 P.2d at 391).

For example, in Easter the State commented on the defendant's silence when the officer referred to him as a "smart drunk." Easter, 130 Wash.2d at 234, 922 P.2d 1285. The officer explained that he meant that Easter was "evasive, `wouldn't talk' and was hiding something." Easter, 130 Wash.2d at 234, 922 P.2d 1285. In closing, the prosecutor repeatedly referred to the defendant as a "smart drunk" and argued that these words answered all the questions and summed up the testimony at trial. Easter, 130 Wash.2d at 234, 922 P.2d 1285. These comments constituted prejudicial error. Easter, 130 Wash.2d at 242-43, 922 P.2d 1285.

In contrast, the officer's statements in Sweet were a mere reference to the defendant's silence, which did not warrant reversal absent a showing of prejudice. Sweet, 138 Wash.2d at 481, 980 P.2d 1223. In Sweet, the officer testified that Sweet said he would take a polygraph test and that he would give the officer a written statement after he had consulted with his attorney. These items were not introduced at trial. Sweet, 138 Wash.2d at 480, 980 P.2d 1223. The court upheld the conviction because Sweet did not show that he was prejudiced by the statements. Sweet, 138 Wash.2d at 481, 980 P.2d 1223.

Here, the facts are more like those in Sweet than in Easter. Moores did not say that Henderson refused to be tape-recorded. And even if, as Henderson contends, the jury could infer his refusal to talk to the officer from a request to be tape-recorded, neither the officer nor the prosecutor commented on Henderson's refusal to speak.

We review the denial of a motion for mistrial under an abuse of discretion standard. Lewis, 130 Wash.2d at 707, 927 P.2d 235. A mistrial should not be granted unless "the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly." Lewis, 130 Wash.2d at 707, 927 P.2d 235 (citation omitted). Because Henderson did not show prejudice, the trial court did not abuse its discretion in denying the motion for a mistrial. As the court recognized in Lewis, "[m]ost jurors know that an accused has a right to remain silent and, absent any statement to the contrary by the prosecutor, would probably derive no implication of guilt from a defendant's silence." Lewis, 130 Wash.2d at 706, 927 P.2d 235 (citing Tortolito, 901 P.2d at 390). But we find the prosecutor's reference to Henderson's right to remain silent to be improper and prejudicial under the doctrine of cumulative error discussed below.

B. Prosecutorial Misconduct

Henderson next contends that he was denied a fair trial because "the prosecutor asked questions of witnesses and made comments in court [that] placed inadmissible and prejudicial information before the jury." We agree.

Henderson claims the following misconduct: (1) repeated references to a fight between Henderson and Connie Rodgers, in which Rodgers received injuries that put her in the hospital; (2) asking whether the sheriff's office put together a photo montage using pictures of Henderson that they already had on hand; (3) improperly testifying by stating that the alleged crime was a robbery; (4) referring to one of defense counsel's statements as "garbage editorialization," and requesting that counsel be sanctioned in front of the jury; and (5) inviting an...