STATE v CAVAZOS, 20647-5-III (Wash.App. 4-22-2003)

No. 20647-5-IIIThe Court of Appeals of Washington, Division Three. Panel One.
Filed: April 22, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Chelan County Docket No: 01-1-00303-9 Judgment or order under review Date filed: 10/10/2001

Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, 1314 S Grand Blvd Ste 2, Spokane, WA 99202-1174.

Counsel for Respondent(s), Douglas J. Shae, Attorney at Law, P.O. Box 2596, Wenatchee, WA 98807-2596.

KATO, J.

Jose Cavazos was convicted of second degree assault. Claiming his right to remain silent was violated, he appeals. We reverse and remand for a new trial.

While incarcerated in the Chelan County Jail, Mr. Cavazos was involved in a fight with another inmate. During the fight, he broke the other inmate’s nose. The State charged Mr. Cavazos with second degree assault.

The victim, Kenneth Hansen, testified Mr. Cavazos came into his room and, without any provocation, began hitting him in the face. On the other hand, Mr. Cavazos testified Mr. Hansen provoked the fight by calling him a `stupid beaner’ and taking a swing at him. Report of Proceedings (RP) at 100. He also said he got a bloody nose.

During cross examination, the prosecutor asked Mr. Cavazos why he did not mention this provocation to the corrections officers:

Q: And you didn’t have any injuries, did you?
A: Just a bloody nose is it.

Q: Yeah, but you didn’t tell anybody that, did you? Just a bloody nose, right?

A: Yeah.
Q: You didn’t tell anybody that, though.
A: Why? They ain’t going to believe me.
Q: But you never told anybody, you never made a report that you were injured in a fight, did you?
A: No.
Q: And if there was somebody making racial remarks about you, wouldn’t that be something the jail would want to know about, so they could move that person away from you, for your protection?
A: I guess, yeah.
Q: But you didn’t tell anybody that.
A: No.
Q: The first time we hear this is today, right?
A: Yeah.

RP at 116-17.

The prosecutor kept on, specifically noting that Mr. Cavazos had failed to tell his version of the events to the corrections officer:

Q: The deputies were here — you know Deputy Nieman and Deputy Hayes.
A: Yeah.
Q: They’re okay guys, aren’t they?
A: Yeah.
Q: You like them.
A: Yeah, they’re all right.
Q: You could have told them what happened, right?
A: Yeah.
Q: You didn’t.
A: Yeah.
Q: You could have told them you had a bloody nose, right?
A: Yeah.

RP at 118. In closing argument, the prosecutor emphasized Mr. Cavazos’s failure to tell anyone his story. He was convicted as charged.

At issue is whether Mr. Cavazos was denied his right to remain silent by the State’s cross-examining him about his failure to tell anyone his version of the incident prior to trial.[1] Although defense counsel did not object to the State’s questions, the issue can be raised for the first time on appeal because it is a manifest error affecting a constitutional right. State v. Romero, 113 Wn. App. 779, 786, 54 P.3d 1255 (2002). Defendants have a constitutional right to remain silent. State v. Easter, 130 Wn.2d 228, 235-36, 922 P.2d 1285 (1996); Romero, 113 Wn. App. at 786. It is error for the State to use a defendant’s constitutionally permitted silence as substantive evidence of guilt. Romero, 113 Wn. App. at 787. But it is not necessarily constitutional error for the State to make an indirect reference to a defendant’s silence. Id. at 787. A direct comment on a defendant’s silence occurs when the comment is used either as substantive evidence of guilt or to suggest that silence is an admission of guilt. Mr. Cavazos was claiming he acted in self-defense. The State’s questions were in reference to this claim in an attempt to discredit the defense by establishing Mr. Cavazos did not mention any provocation to the responding officers. The questions were therefore indirect comments on his silence.

When the State indirectly comments on a defendant’s silence, courts must ask three questions to determine whether to apply the constitutional or nonconstitutional harmless error standard: (1) could the comment reasonably be considered purposeful; (2) was the comment made for the purpose of prejudicing the defense; and (3) was the comment exploited by the State during the course of the trial, including during argument in an attempt to prejudice the defendant? Romero, 113 Wn. App. at 790-91. If the court can answer yes to any of these questions, the indirect comment is an error of constitutional proportions and the constitutional harmless error standard applies. Id. at 791. If the answer to all three questions is no, courts must then apply the nonconstitutional error standard of review, where error is reversible only if the defendant can establish prejudice. Id.; State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235
(1996).

In closing argument, the State exploited Mr. Cavazos’s testimony about his silence regarding the self-defense claim. The indirect comment was thus a constitutional error; the constitutional harmless error standard applies.

A constitutional error is harmless if the untainted evidence is so overwhelming that it “necessarily leads to a finding of guilt.” State v. Heller, 58 Wn. App. 414, 421, 793 P.2d 461 (1990) (quoting State v. Gutierrez, 50 Wn. App. 583, 590, 749 P.2d 213, review denied, 110 Wn.2d 1032 (1988)). In determining if the untainted evidence is overwhelming, this court looks to whether the defendant’s credibility was at issue because he testified and whether his exculpatory story was plausible. Id. Mr. Cavazos testified in his own behalf and claimed self-defense. He also said the incident began when the victim called him a derogatory name.

Because his story is plausible and the untainted evidence falls short of being overwhelming, the error is not harmless. See Heller, 58 Wn. App. at 422. Reversed and remanded for new trial.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

BROWN, C.J. and SWEENEY, J., concur.