State v. Wallin

• Decision Date: 02 February 2012
• Docket Number: No. 28671–1–III.,28671–1–III.
• Citation: 269 P.3d 1072,166 Wash.App. 364
• Parties: STATE of Washington, Respondent, v. Keir Albert WALLIN, Appellant.
• Court: Washington Court of Appeals

166 Wash.App. 364

269 P.3d 1072

STATE of Washington, Respondent,

v.Keir Albert WALLIN, Appellant.

No. 28671–1–III.

Court of Appeals of Washington, Division 3.

Feb. 2, 2012.

Eric J. Nielsen, Jennifer M. Winkler, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Edward Asa Owens, Tyson Robert Hill, Grant County Prosecutor's Office, Ephrata, WA, for Respondent.

SWEENEY, J.

[166 Wash.App. 365] ¶ 1 Our Supreme Court recently held that the state may suggest that a defendant “tailored” his testimony based on what he heard at trial if the defendant opens the door to that suggestion. State v. Martin, 171 Wash.2d 521, 536–38, 252 P.3d 872 (2011), And we have recently held that an inquiry that suggests that testimony was “tailored” is proper to explain inconsistencies and contradictions between a defendant's testimony and earlier statements to police. State v. Hilton, 164 Wash.App. 81, 261 P.3d 683 (2011). But here the State suggested that the defendant tailored his testimony based on nothing more than his presence at his trial. We conclude this was improper and we reverse and remand for a new trial.

FACTS

¶ 2 The pertinent factual backdrop here begins with the trial of this case. But briefly, the charges stem from a July 1, 2009 traffic stop by Moses Lake police. An officer saw a van passenger riding without a seatbelt. He stopped the van and got identification from the passenger, Keir Wallin, and the driver, Anthony Antone. Dispatch reported that Mr. Wallin was an “officer safety risk.” Report of Proceedings (RP) (Nov. 4, 2009) at 32. So the officer frisked Mr. Wallin and searched the front passenger area of the van. He found drugs and drug paraphernalia in a wooden box and he arrested Mr. Wallin for possession of these things.

¶ 3 The State charged Mr. Wallin with possession of cocaine, morphine, ecstacy, less than 40 grams of marijuana, and possession of drug paraphernalia. His case went to a jury trial. Mr. Wallin testified that the wooden box belonged to his friend, Mr. Antone. Mr. Wallin knew about the box because the two frequently smoked marijuana together and Mr. Antone stored his marijuana and pipe in the wooden box. Mr. Wallin said that he did not tell police that the box belonged to Mr. Antone because it was an “integrity loyalty issue between one friend to another.” RP (Nov. 5, 2009) at 176. He also believed Mr. Antone would admit that the box belonged to him.

¶ 4 The prosecutor asked Mr. Wallin if having access to the other evidence in the case gave Mr. Wallin the opportunity to tailor his testimony to the other evidence:

Q. Mr. Wallin, you've had the advantage of being in the courtroom and hearing all the testimony so far, correct?

A. Yes, I have, sir.

Q. You've had the chance to know ahead of time what people were going to say before you took the stand?

A. No, not really. Could you elaborate, please?

Q. Before you took the stand, you had the opportunity to hear Sergeant Jones testify?

A. Yes.

Q. And to watch the video?

A. Yes.

Q. And to see the evidence that was admitted?

A. Yes. Today or yesterday.

Q. You had the opportunity to see the police reports?

A. Yes, I have.

RP (Nov. 5, 2009) at 177–78.

¶ 5 The jury convicted Mr. Wallin of all charges. Mr. Wallin appealed, arguing that the cross-examination violated his Washington state constitutional rights to appear and defend in person and to meet witnesses face to face. He filed his appellate brief in June 2010 and we stayed his appeal pending a decision in Martin. Martin, 171 Wash.2d 521, 252 P.3d 872. Martin was decided in May 2011 and the stay in this case was lifted in June 2011.

DISCUSSION

¶ 6 Mr. Wallin concedes the applicability of Martin. The State responds that this ends the discussion. Mr. Wallin's claims that his constitutional right to be present at his trial, to confront witnesses, and testify on his own behalf are all compromised by allowing the State to suggest that he tailored his testimony when the record does not support such an inference. We review his claim of error de novo. State v. Robinson, 171 Wash.2d 292, 301, 253 P.3d 84 (2011).

¶ 7 Article I, section 22 of the Washington State Constitution guarantees the accused rights “to appear and defend in person” and “to testify in his own behalf.” Our Supreme Court only recently passed on whether a prosecutor's suggestion that the defendant “tailored” his testimony violates rights guaranteed by article I, section 22 to confront witnesses and to appear and defend. In Martin, it held that such cross-examination does not violate a defendant's article I, section 22 rights if the defendant opens the door to that inquiry:

Here Martin testified on direct examination about what time he was in the parking lot where the van was found as follows: “I would guess 11:30, 12:00, 12:30 at night. From prior testimony, I know it had to be before one.” VRP (Dec. 11, 2007) at 28. In our judgment, this testimony opened the door to questions on cross-examination about whether he tailored his testimony to evidence presented by other witnesses. Prohibiting the kind of questioning that occurred here, where the defendant states that he based his testimony, in part, on testimony of other witnesses, would inhibit the jury's ability to judge credibility and thereby seek the truth. In sum, we believe that in a case such as the instant, where the credibility of the defendant is key, it is fair to permit the prosecutor to ask questions that will assist the finder of fact in determining whether the defendant is honestly describing what happened.

Martin, 171 Wash.2d at 536, 252 P.3d 872 (emphasis added). A five-justice majority of the court then concluded that Mr. Martin had opened the door to the prosecutor's suggestion that he tailored his testimony:

We conclude, therefore, that the State did not violate article I, section 22 by posing questions during cross-examination that were designed to elicit answers indicating whether Martin tailored his testimony.

....

We conclude, however, that our state constitution was not violated when a deputy prosecutor, in response to testimony Martin had given on direct examination, asked Martin if he had tailored his testimony to conform to testimony given by other witnesses.

Id. at 536, 537–38, 252 P.3d 872 (emphasis added).

¶ 8 The court's conclusions in Martin rely on the United States Supreme Court's decision in Portuondo. Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000). The prosecutor made the comments at issue in Portuondo during closing argument: “ ‘unlike all the other witnesses in this case the defendant has a benefit and the benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies.... That gives you a big advantage, doesn't it.’ ” Id. at 64, 120 S.Ct. 1119. On appeal, the defendant argued these comments burdened his right to testify on his own behalf and to be present at trial. Id. at 65, 120 S.Ct. 1119. He attempted to analogize these rights to his right to not testify at trial—something that is clearly prohibited. Id. at 65–66, 120 S.Ct. 1119.

¶ 9 A majority of the United States Supreme Court rejected the analogy and concluded that the rights are different for two reasons. Id. First, prohibiting comments on a defendant's rights to testify and be present at trial is not rooted in history. Id. Second, comments on a defendant's failure to testify go toward guilt, not dishonesty. Id. at 67–68, 120 S.Ct. 1119. Comments on a defendant's failure to testify are prohibited when it is used as “ ‘evidence of guilt.’ ” Id. at 69, 120 S.Ct. 1119 (quoting Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). Comments on a defendant's rights to be present at trial and testify on his own behalf, on the other hand, touch upon the defendant's credibility as a witness. Id. Witness credibility is important to the “ ‘truth-seeking function’ ” of trial and a defendant-witness is therefore treated like any other witness. Id. (quoting Perry v. Leeke, 488 U.S. 272, 282, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989)). The Court ultimately held that the prosecutor's comments did not violate the Sixth Amendment.

¶ 10 Justice Ruth Bader–Ginsburg dissented. She would have held that the comments violate the Sixth Amendment. Id. at 76 (Ginsburg, J., dissenting). She argued that the majority “transforms a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility.” Id. According to the dissent, the prosecutor's comments violated the Sixth Amendment because the comments were generalized accusations. Id. at 77, 120 S.Ct. 1119 (Ginsburg, J., dissenting). The dissent, however, suggested that a prosecutor pointing out specific instances of tailoring would not necessarily burden a defendant's credibility and would support a trial's truth-seeking function. Id. at 78, 120 S.Ct. 1119 (Ginsburg, J., dissenting).

¶ 11 Martin addressed similar issues but applied Washington state constitutional principles. The State questioned Mr. Martin about what time he was at an industrial complex. Martin, 171 Wash.2d at 524, 252 P.3d 872. Mr. Martin said, “ ‘I would guess 11:30, 12:00, 12:30 at night. From prior testimony, I know it had to be before one.’ ” Id. When asked what time he got into a van, Mr. Martin said, “ ‘I'm saying this time, because of prior testimony, that I heard, said that the shop was closed at 1:00 a.m., so it was before 1:00 a.m.’ ” Id. The prosecutor then cross-examined Mr. Martin on his ability to tailor his testimony:

“A. Obviously I have been sitting in that seat the whole time, yes.

Q. And you've also had the advantage of knowing what people were going to say ahead of time, wouldn't you agree with me?

A. No, I didn't know what anybody was going to say ahead of time.

Q. You didn't get to read the police reports?

A. I got to read the police reports.

Q. And you didn't get to read witness statements?

A...