Appeal from Superior Court, King County; 93-1-00612-4. Honorable Arthur E. Piehler, Judge. Judgment Date: 7-6-93.
Petition for Rehearing Granted May 8, 1996,
Guy, J., Durham, C.j., Dolliver, Smith, Johnson, Talmadge, Sanders, J.j., Madsen, J. (concurring by separate opinion) Alexander, J.
The opinion of the court was delivered by: Guy
GUY, J.--A defendant in a criminal action asserts that the State used his pre-arrest silence against him as substantive evidence of his guilt in its case in chief in violation of the Fifth Amendment. We conclude that neither the State's witness nor the prosecutor in argument made any comment on the defendant's pre-arrest silence. We affirm the conviction.
The State charged Ricky Lee Lewis with the rape of R. M. and with the assault of J. S. based on two separate events which occurred several days apart. The charges were tried together. In testimony regarding the rape charge, the victim testified that Lewis provided her with drugs and later demanded sex in exchange for the drugs. She testified that Lewis told her she could not leave his apartment until she had sex with him, and that he showed her a rope and a leather strap and told her he had locked girls in the closet for up to a week if they refused him.
The rulings on the motions in limine apparently caused some confusion. Before trial, the defense moved to exclude any evidence of the defendant's behavior at the time of arrest. Specifically, the defense objected to the introduction of the evidence that the defendant had said at the time of arrest, "I didn't rape no bitch" or "I will talk to you when I feel like it." *fn1 The trial court granted the defense motion in limine as to these statements.
Detective Steiger of the Seattle Police Department was one of the investigating officers who testified at trial. Just prior to Detective Steiger's testimony, defense counsel stated: "I had made a motion in limine concerning any reference to Mr. Lewis's perceived behavior during the arrest. There was an occasion in the course, once he was developed as a suspect, that there were some phone calls exchanged. He didn't keep meetings." Report of Proceedings at 158. The court responded that this was excluded in the motion in limine. The prosecutor expressed confusion about the trial court's prior decision. The trial court said, "what [defense counsel] is objecting to is that Detective Steiger is not going to tell about making appointments and then not keeping them and that sort of thing." Report of Proceedings at 159.
During trial, the prosecutor asked Detective Steiger if he had talked to the defendant on the telephone. The following testimony occurred:
Q What was the nature of your conversation?
A I told him that we were investigating him for two incidents involving assaults on women.
Q And did you go into detail about what the allegations were?
A I told him -- my recollection is that I told him or that he asked me if it was about women. He said those women were just at my apartment and nothing ...