Appeal from Superior Court, King County; 91-1-07188-4. Honorable Arthur E. Piehler, Judge.
Authored by Philip A. Talmadge, Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Richard B. Sanders
The opinion of the court was delivered by: Talmadge
TALMADGE, J. -- Patrick Easter was involved in a serious automobile accident in which he and four others were injured. Prior to his arrest, Easter chose not to answer a police officer's questions as to what happened and whether he had been drinking. At trial, despite a pretrial order preventing any questions by the State on Easter's alleged evasiveness in response to the officer's questions, the officer was permitted to testify as to Easter's pre-arrest silence in the State's case in chief. In closing argument, the prosecution repeatedly characterized Easter's silence as that of a "smart drunk" and made it the central theme of the State's case.
We hold the State's conduct here violated Easter's Fifth Amendment right to silence. We reverse Easter's four convictions for vehicular assault and remand the case to the King County Superior Court for a new trial.
1. Was Easter's constitutional right to silence violated when the State's witness testified as to Easter's pre-arrest silence and the State referred to such pre-arrest silence in closing arguments to the jury?
2. Was the error harmless beyond a reasonable doubt?
At 2:30 a.m. on October 31, 1991, at the intersection of Westlake Avenue North (Westlake) and Mercer Street (Mercer) in Seattle, Easter's Isuzu Trooper collided with a yellow taxicab. Easter was returning from a wedding reception in Bellevue to his home on Westlake near the accident site. The cab was carrying six University of Washington students. Easter suffered injuries in the accident, and four of the students were seriously injured.
The two vehicles collided at a right angle, with Easter's Isuzu striking the driver's side of the cab. At the accident location, Westlake and Mercer intersect at right angles and both contain several lanes of traffic. Westlake runs one-way northbound, and Mercer runs one-way eastbound. At the time of the accident, the police did not know whether Easter had been improperly going southbound on Westlake and the cab eastbound on Mercer, or, alternatively, whether Easter was properly going eastbound on Mercer and the cab northbound on Westlake. A test administered shortly after the accident showed Easter's blood alcohol content was approximately 0.11. Several days later, Easter was arrested and charged with four counts of vehicular assault, after a police accident reconstructionist concluded Easter caused the accident by going the wrong way on Westlake.
Before the trial, Easter moved to exclude reference to his silence when questioned by Officer Fitzgerald of the Seattle Police Department at the accident scene. The trial court ruled Fitzgerald could not testify what he asked Easter, that Easter stood mute when questioned, or characterize Easter as evasive, but could only testify as to what Easter did "without characterizing it." Report of Proceedings at 123-27, 144.
Easter did not testify at trial. The State and the defense presented evidence supporting two different versions of how the accident happened. Easter contended he had been eastbound on Mercer, with the cab northbound on Westlake; and he unavoidably struck the cab when it improperly entered the intersection on a red light, turned left onto Mercer, and came to a stop in his path. His theory was supported by the trial testimony and contemporaneous statements to a detective of three witnesses who did not know anyone involved in the accident. The State's theory was the cab was going eastbound on Mercer, and Easter's vehicle was proceeding southbound on Westlake (the wrong way on a one-way street), when the vehicles collided. This theory was supported by the testimony of the cab driver and the students, although the students were unfamiliar with the area and could not recall the street on which they had been traveling.
The State and the defense presented the testimony of accident reconstructionists. The experts' Conclusions were contradictory. Detective Chapman testified Easter's Isuzu was moving southbound and the cab eastbound, based on his analysis of skid marks, scuff marks, roadway gouges, and auto body damage. The defense expert concluded Easter was going the right way on Mercer. He testified the configuration of skid marks was inconsistent with the State's theory. Because there was no secondary damage on the vehicles and the imprint of the Isuzu on the side of the cab was not smeared, he believed the cab had stopped when the vehicles collided, consistent with the defense theory of the facts.
Officer Fitzgerald's testimony occupied much of the trial, although he did not observe the accident or take a statement from a witness. He testified he arrived within minutes of the accident, and found Easter in the bathroom of a gas station at the intersection, with torn clothes, a cut forehead, and blood on his elbows and knees. He testified Easter "totally ignored" him when he asked what happened. Report of Proceedings at 206-09. He also testified when he continued to ask questions, Easter looked down, "once again ignoring me, ignoring my questions." Id. at 210. The court overruled an objection to this testimony.
Fitzgerald testified he took Easter back to the intersection and told him he would be placed under arrest or he could submit to a voluntary blood alcohol test at a hospital. Although Officer Fitzgerald said he had probable cause to believe Easter was under the influence, and involved in a serious accident, Fitzgerald did not give Easter Miranda *fn1 warnings at that time. *fn2 Over objection, Fitzgerald testified Easter's attitude then changed. Easter finally talked and was no longer evasive. Easter allegedly asked for business papers in the truck and for a friend to be telephoned. Fitzgerald also testified Easter answered questions as to his driver's license and said his home was a mile north of the accident scene. Fitzgerald testified he suspected Easter was intoxicated because of Easter's slightly slurred speech, bloodshot eyes and odor of alcohol on his breath, although Easter had no coordination problems, walked without difficulty, and produced his license without fumbling or stumbling. *fn3
On redirect, Fitzgerald contrasted Easter's earlier evasiveness with his willingness to communicate after learning he would be taken to give blood. Officer Fitzgerald also testified, over objection, he "felt at the time that the defendant was being smart drunk." The officer explained, "After you've arrested enough people for DWI, you will notice that there are basically two classes when you stop a car." The court sustained an objection. The officer then testified by the use of the term "smart drunk," he meant to say Easter "was evasive, wouldn't talk to me, wouldn't look at me, wouldn't get close enough for me to get good observations of his breath and eyes, I felt that he was trying to hide or cloak." The defense objected on the grounds this was improper Conclusion testimony, but the court overruled the objection. The officer stated, "I felt he was trying to hide these observations." 130 Wash. 2d 228, 243-45.
In closing, the prosecutor argued two weeks of testimony were best summed up with the words "smart drunk. That is really what the State of Washington v. Patrick Easter is all about." Report of Proceedings at 790. He referred several times to testimony Easter was a "smart drunk" who had ignored Officer Fitzgerald, except when asking about his papers and friend, and concluded, "Easter is a smart drunk." Id. at 801-03, 806-08. In his rebuttal, the prosecutor argued "smart drunk" answered every question in the case. The prosecutor concluded: "I told you in the beginning . . . he's a smart drunk who knew he was intoxicated. He knew he was driving the ...