State v. Wilson
| Decision Date | 12 December 2016 |
| Docket Number | 73130-1-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. EVAN JOHN WILSON, Appellant. |
UNPUBLISHED OPINION
Evan Wilson appeals his criminal convictions on the ground that the trial court failed to instruct the jury that it could not draw any adverse inferences from his choice not to testify. The State responds that Wilson did not properly request the instruction or object to the court's refusal to give it. We hold that Wilson did request the instruction but did not preserve the issue by objecting to its omission. Still because the failure to give the requested instruction was a manifest error affecting a constitutional right, Wilson may raise it for the first time on appeal. Because we hold that the error was not harmless beyond a reasonable doubt, we reverse.
Blake Rosenthal knew Evan Wilson through a mutual friend. Rosenthal owned a pistol, a Sig Sauer 1911. He decided to sell the pistol and posted images of it on Facebook, offering to sell it for $1, 000. Wilson told Rosenthal he knew someone, Wiley Breon Smith, who would be interested in buying the pistol. Wilson did not tell Rosenthal Smith's name at the time. Smith's offer was $800 plus two "ziplock bag[s]" of marijuana for the pistol.[1] Rosenthal agreed to $900 and one bag of marijuana.
Rosenthal's account of the sale was that he and Wilson met with Smith in the parking lot of the Mukilteo ferry terminal on October 6 2014. Rosenthal and Wilson were on foot because they had walked on the ferry from Whidbey Island to Mukilteo. They got into Smith's car to make the sale. The three agreed to go to Smith's apartment so that Rosenthal could show Smith how to fieldstrip the pistol.
While they were driving, Wilson was examining the pistol. He loaded the gun and began to wave it around. When Rosenthal asked him to unload the gun, Wilson asked him, "How does it feel to get robbed with your own gun?"[2] Smith asked Wilson what he was doing and stopped the car. Wilson told Rosenthal to give him his cell phone. Wilson told Smith not to give Rosenthal the money. Wilson told Rosenthal, [3]Rosenthal got out of the car without the pistol, the money, or his cell phone.
Smith's account of the robbery was similar to Rosenthal's although he did not mention any threat Wilson had made to Rosenthal.[4] After the robbery, according to Smith, Smith wanted Wilson to "get away from [him]."[5] Wilson was concerned that people at the ferry terminal would be looking for him, so Smith dropped Wilson off at a friend's house in Everett. Smith posted a picture of himself on Facebook with Rosenthal's pistol.
Later that month, the police arrested Wilson and Smith for the robbery. The police did not recover the pistol when they arrested Wilson and Smith. The State charged Wilson with first degree robbery while armed with a firearm, unlawful possession of a firearm in the second degree, possessing a stolen firearm, and intimidating a witness.
During the trial, both Smith and Rosenthal testified for the State. In exchange for testifying, the State gave Rosenthal immunity for any offenses "involving: possession or delivery of a firearm under circumstances not authorized by law, or the possession, attempted possession, or intent to deliver marijuana under circumstances not authorized by law."[6] Smith, who was prohibited from possessing a firearm, entered a plea of guilty for possession of stolen property, and the State agreed that it would not prosecute him for possessing or attempting to possess Rosenthal's firearm.
The police officer who had arrested Wilson testified that, when asked about the robbery, Wilson said he could not remember it because of drinking too much alcohol and taking drugs. Rosenthal's mother testified that Rosenthal had called her several times on the evening of the robbery from a stranger's phone. He eventually reached her and told her he had been robbed. He described the robbery to her and she told him to call the police.
Rosenthal testified that about a week after the robbery, Wilson sent him a message asking, [7] Rosenthal responded, [8] Wilson never responded.
Wilson's former girlfriend testified that Wilson had never told her anything about the robbery, although she had mentioned to Wilson that Rosenthal had told her about the robbery.
The mutual friend testified that Rosenthal had told him about the robbery and was going to the police. The friend could not remember Wilson's response.
Before trial, Wilson proposed that the trial court instruct the jury that it could not draw any adverse inferences from his decision not to testify, which we will refer to as the "no-adverse-inference instruction."[9] Before Wilson rested, the court mentioned that it would need to discuss its proposed jury instructions with the parties later that day, telling them that it had made a potential packet, and pointing out that an instruction allowing the jury to consider Wilson's criminal history to impeach him would depend on whether Wilson testified. Because Wilson's earlier felony conviction was also evidence for his unlawful possession charge, the court noted it would need to know how the two instructions about Wilson's criminal history would fit together.
The State said it was assuming that Wilson would not testify. The court responded, [10] Later that morning, Wilson's counsel told the court that Wilson would not testify. The court noted it would "remove the two instructions that involve [Wilson] testifying."[11] No one mentioned the no-adverse-inference instruction at either time that morning.
Before recessing for lunch, the court gave both attorneys its proposed packet for them to review. When they reconvened, both parties agreed that they had had an opportunity to review the packet. The court asked if Wilson had "any exceptions to the [c]ourt's declining to give any particular instructions?"[12] Wilson objected to an instruction regarding a firearm enhancement, but did not except to or mention the court's omission of the no-adverse-inference instruction. The court instructed the jury without giving a no-adverse-inference instruction.
The jury found Wilson "not guilty" of intimidating a witness, but convicted Wilson on the other charges. Wilson appeals.
Under both the United States Constitution and the Washington State Constitution, juries may not draw any adverse inferences from a criminal defendant's decision not to testify. Carter v. Kentucky, 450 U.S. 288, 297-98, 101 S.Ct 1112, 67 L.Ed.2d 705 (1981) (U.S. Const, amend. V); State v. Pavelich, 150 Wash. 411, 419, 273 P. 182 (1928), affd en banc. 153 Wash. 701, 279 P. 1107 (1929) (Pavelich I) (Wash. Const, art. I, § 9). If the defendant requests a no-adverse-inference jury instruction, the trial court must give it. Carter, 450 U.S. at 300; Pavelich 1.150 Wash, at 420.
The State argues that there was no error because Wilson did not properly request the no-adverse-inference instruction. Wilson responds that he requested the instruction by including it in his proposed instructions. We agree with Wilson.
The trial court is not required to give a no-adverse-inference instruction unless the defendant requests it. State v Jeffries, 105 Wn.2d 398, 423, 717 P.2d 722 (1986). Parties may propose jury instructions by serving them on the opposing party, filing a copy with the clerk, and delivering the original and a copy to the judge. CrR 6.15(a).
Here, Wilson submitted a no-adverse-inference instruction with his packet of proposed instructions. Wilson's instruction was the pattern jury instruction for this issue. See 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 6.31 (4th ed. 2016) (WPIC). Before the trial court instructed the jury, it gave both parties the packet of instructions it intended to use. The court had not included the no-adverse-inference instruction. Wilson did not call the missing instruction to trial court's attention. The trial court did not give the no-adverse-inference instruction.[13]
The State argues that Wilson did not "properly request" the instruction because he failed to take exception to the trial court leaving it out.[14] The State's argument is not persuasive. Washington already assigns legal significance to a party's failure to object to an instruction: the party does not preserve the error for appeal. CrR 6.15(c); State v. Sublett, 176 Wn.2d 58, 75-76, 292 P.3d 715 (2012).
The State does not cite any authority for a distinction between proposing the instruction and requesting it. Instead, it cites cases where the trial court determined that there was no error because the defendant did not request the instruction. State v. Pavelich, 153 Wash. 379, 380, 279 P. 1102 (1929) (Pavelich li); Jeffries. 105 Wn.2d at 423; State v. Zupan, 155 Wash. 80, 97, 283 P. 671 (1929). Those cases do not apply here.
The State also argues that this court should interpret Wilson's failure to object to the missing instruction as a "tactical decision not to request" it.[15] On this record, we do not conclude that Wilson made that tactical decision. If Wilson had wished to withdraw his proposed...
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