Appeal from Mason County Superior Court. Docket No: 12-1-00304-1. Date filed: 11/19/2012. Judge signing: Honorable Toni a Sheldon.
Jodi R. Backlund and Skylar T. Brett (of Backlund & Mistry ), for appellant.
Michael K. Dorcy, Prosecuting Attorney, and Timothy J. Higgs, Deputy, for respondent.
AUTHOR: Bradley A. Maxa, J. We concur: J. Robin Hunt, P.J., Linda Cj Lee, J.
[183 Wn.App. 413] ¶ 1 Jared Allan Pinson appeals his second degree assault conviction (domestic violence), claiming that prosecutorial misconduct deprived him of a fair trial. We hold that (1) the prosecutor engaged in misconduct by arguing in closing that Pinson's failure to respond to police questioning was evidence of his guilt, in violation of the constitutional right against self-incrimination; (2) although Pinson did not object to the prosecutor's argument, he did not waive his prosecutorial misconduct claim because an instruction would not have cured the prejudice; and (3) the misconduct resulted in prejudice that had a substantial likelihood of affecting the jury's verdict. Accordingly, we reverse and remand for a new trial.
¶ 2 On July 29, 2012, Mason County Sheriff's Deputy Joel Nault responded to a reported domestic violence incident in Shelton. He contacted Stacey Campbell, who was in a parking lot across the street from her residence. She told Deputy Nault that Pinson had awakened her, thrown her off the couch where she was sleeping, and pulled her to the [183 Wn.App. 414] floor by her neck. She said she feared for her life, could not breathe, escaped and ran out the door, and called 911. Deputy Nault described Campbell as hysterical, sobbing, and holding her neck, where he noticed red markings.
¶ 3 Deputy Nault and another officer went to Pinson's house. When Pinson appeared, they put him in handcuffs and took him to the front porch. Pinson was cooperative and allowed the officers to talk with him. Pinson explained that he and Campbell had been drinking with friends and got into a fight. When Deputy Nault asked if the fight was verbal or physical, Pinson did not respond. The State charged Pinson with second degree assault (domestic violence).
¶ 4 The trial court ruled in limine that the State could not ask Deputy Nault about Pinson not answering the question of whether the fight was physical. However, defense counsel asked Deputy Nault that question during cross-examination. The trial court ruled that this inquiry opened the door for the State to ask about Pinson's response to Deputy Nault. The prosecutor subsequently elicited testimony from Deputy Nault that when he asked Pinson if the fight got physical, Pinson became quiet. Defense counsel then had Deputy Nault confirm that Pinson had no obligation to talk with him.
¶ 5 Campbell testified that she and Pinson were in the seventh year of their relationship and that she continued to love him. She testified that they had friends over for dinner that July night and had been drinking, but she did not remember calling 911 or talking with the police. She explained that the redness on her neck and chest depicted in police photographs was from her drinking and crying, not from a physical assault.
¶ 6 Pinson testified that he and Campbell had an argument that evening, but he did not want to deal with it and went to bed instead. The next thing he recalled was the deputies yelling his name and telling him to come down the stairs. Pinson stated that he did not answer Deputy Nault's [183 Wn.App. 415] question about whether the fight was physical because " it ...