State v. Upton

• Decision Date: 07 September 1976
• Docket Number: No. 1726--II
• Citation: State v. Upton, 556 P.2d 239, 16 Wn.App. 195 (Wash. App. 1976)
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Donald Levi UPTON, Appellant.

Page 195

16 Wn.App. 195

556 P.2d 239

The STATE of Washington, Respondent, v.Donald Levi UPTON, Appellant.

No. 1726--II.

Court of Appeals of Washington, Division 2.

Sept. 7, 1976.

Edward Holm, Olympia, appointed, for appellant.

Henry G. McCleary, Jr., Deputy Pros.Atty., Patrick D. Sutherland, Pros.Atty., Olympia, for respondent.

PEARSON, Judge.

The defendant, Donald Upton, appeals from a conviction of second-degree assault with a special finding that he was armed with a deadly weapon.Five issues are presented on appeal: (1) whether a mistrial should have been declared after defendant was cross-examined about his failure to tell law enforcement officers he had acted in self-defense; (3) whether psychiatric opinion testimony was properly excluded; (3) whether defendant's testimony as to third-party statements regarding the victim's violent nature was properly excluded; (4) whether the defendant should have been provided with a copy of the victim's FBI 'rap sheet'; and (5) whether the court's self-defense instruction was erroneous.For the reasons stated below, we find defendant was unduly prejudiced when the State brought his post-arrest silence regarding his claim of self-defense to the attention of the jury.The judgment and sentence is therefore reversed and the case remanded for a new trial.

On November 20, 1973, defendant and his nephew, George Upton, became involved in a heated argument over business matters.There was a brief fight in George Upton's office, which was terminated by the intervention of a third party.Defendant left George Upton's office, went to his apartment where he picked up a .22 caliber derringer, and then set out to find George Upton, allegedly to deter him from coming to the defendant's apartment.Several blocks away the two men met, where defendant got out of his car and went to the side of George Upton's vehicle.After the men had a brief discussion, defendant shot George Upton, wounding him in the lip.More discussion ensued, after which the wounded man drove himself to the hospital and the defendant returned to his apartment, where he was arrested a short while later.

The arresting officers, Thurston County Sheriff's Deputies, read defendant his Miranda rights, which defendant indicated he understood.Nevertheless, he made a few comments about the incident, but did not mention self-defense.The deputies, however, made no attempt to obtain a statement from the defendant, since the matter was being handled by the Olympia Police Department.When Olympia police officers arrived at the apartment they did not undertake to elicit a statement from the defendant.When he offered to 'tell you guys what happened' the officers told him to wait until he got to the station.Thereafter, relying on his right to silence, defendant made no further statements to the police regarding the incident.

At trial, the prosecution on cross-examination sought to impeach defendant's claim that he had shot George Upton in self-defense by questioning him about his failure, after receiving his Miranda warnings at the time of his arrest, to tell law enforcement officers he had shot George Upton in self-defense.Defendant's motion for a mistrial on the basis that the questions violated both his due process rights and a pretrial restriction on introducing the silence evidence was denied.We hold the use of defendant's post-arrest silence for the purpose of impeaching his plea of self-defense violated the due process clause of the Fourteenth Amendment and constituted reversible error.Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91(U.S.June 17, 1976).

During the State's cross-examination, no objection was made to the prosecutor's inquiries about defendant's post-arrest silence on his claim of self-defense until he had been asked and had answered several of the questions.The State argues that the objection was untimely and therefore constituted a waiver of any error.We disagree.

Prior to its cross-examination, the State was instructed not to bring defendant's post-arrest silence to the attention of the jury.Further, in addition to the objection made during the defendant's cross-examination, defense counsel moved for a mistrial immediately after defendant's examination.These steps were sufficient to preserve the question for review.

The propriety of using a defendant's post-arrest silence to impeach his alibi or defense at trial is a question about which there has been some dispute.SeeUnited States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, (1975), note 2 at 173.The practice was approved in this state in State v. Robideau, 70 Wash.2d 994, 425 P.2d 880(1967).Robideau, however, now appears to be overruled by the Supreme Court's recent decision in Doyle v. Ohio, supra, in which the Court held a defendant's silence after receiving his Miranda warnings at the time of arrest, if used for impeachment purposes, violates his rights under the due process clause of the Fourteenth Amendment.Doyle v. Ohio, supra, --- U.S. at page ---, 96 S.Ct. 2240.

The defendant in Doyle was prosecuted for a narcotics violation.He claimed, for the first time at trial, that he had been framed.In an effort to discredit his claim, the prosecutor was permitted over objection to cross-examine the defendant as to why he had not related this exculpatory story to the police at the time of his arrest.A majority of the Court concluded that the warnings mandated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), compelled them to reject the State's argument that a permissible inference of fabrication may arise from the discrepancy between a defendant's exculpatory story at trial and his silence at the time of his arrest.The Court reasoned that a defendant's silence after receiving his rights is 'insolubly ambiguous' since it may constitute nothing more than his exercise of his rights.Doyle v. Ohio, supra, --- U.S. at page ---, 96 S.Ct. 2240.The Court further stated that implicit in the Miranda warnings is the assurance that silence will carry no penalty, and given this implication, the use of a defendant's post-arrest silence to impeach an explanation made at trial is fundamentally unfair and thus a deprivation of due process.Doyle v. Ohio, supra at page ---, 95 S.Ct. 2240.

We feel the facts in the present case demonstrate the validity of the Court's rationale in Doyle.First the circumstances of defendant's failure to claim self-defense after his arrest make it grossly unfair to permit use of this silence for impeachment purposes.When defendant attempted to make statements to the sheriff's deputies he was advised to tell his story to the Olympia police.When the police arrived, defendant again tried to tell his version of the incident and was told not to make any statements until he arrived at the police station.Thereafter it appears defendant refrained from making further statements, and obtained an attorney.Second, the fear of fabrication between the time of arrest and the time of trial, a concern discussed in Doyle, is not necessarily as justified where, as here, a defendant asserts a technical defense to conviction--a defense he might not be expected to be knowledgeable about at the time of arrest--as where a defendant, for the first time at trial, asserts an alibi as a bar to conviction.

For these reasons and pursuant to Doyle v. Ohio, supra, we hold that defendant's rights to due process under the Fourteenth Amendment were violated when he was cross-examined regarding his failure to claim that he had acted in self-defense.

The State suggests that even if error occurred, reversal is not required and urges us to affirm the trial court's finding that the questioning was not prejudicial.The record and counsel's arguments on appeal indicate the verdict in this case was a close one.The error was presumptively prejudicial and under the circumstances we cannot say the jury would probably have rendered the same verdict had the testimony been excluded.State v. Gibson, 79 Wash.2d 856, 490 P.2d 874(1971);State v. Martin, 73 Wash.2d 616, 440 P.2d 429(1968);State v. Redwine, 23 Wash.2d 467, 161 P.2d 205(1945).

Defendant's next assignment of error involves the trial court's refusal to permit his psychiatric expert to express his opinion as to defendant's state of mind at the time of the assault.

Dr. James Bremner, a psychiatrist whose qualifications are admitted, interviewed the defendant three times subsequent to his arrest and administered psychiatric tests.At trial defense counsel offered to prove that on the basis of the interviews and test results, Dr. Bremner was of the opinion that defendant had been in fear of his life or physical harm at the time of the shooting.The trial court excluded this testimony because it constituted an opinion on an ultimate issue.

Exclusion of the doctor's testimony solely on this ground does not accord with established law.An expert may state his opinion on an 'ultimate issue' if it will aid the jury in reaching its verdict and does not mislead it to the prejudice of the objecting party.State v. Alden, 73 Wash.2d 360, 438 P.2d 620(1968);Gerberg v. Crosby, 52 Wash.2d 792, 329 P.2d 184(1958).There are, however, proper grounds for the exclusion of this testimony.

Defendant argues a medical expert may express an opinion regarding a defendant's 'mental state' or 'condition' at the time of the commission of an alleged crime, even though the opinion is based, as here, on facts other than personal or testimonial knowledge of the circumstances of the crime.We do not believe that the rule urged by the defendant is as broad as suggested.

Admission of psychiatric opinion evidence regarding a defendant's mental condition at a particular point in time, absent testimonial knowledge ¹ on the part of the expert, has been permitted when relevant to the question of a defendant's sanity or whether he was suffering from a disease or...