Argued October 21, 2014
[Copyrighted Material Omitted]
Robert Eugene Barry, pro se.
Mitch Harrison (of Harrison Law ), for petitioner.
Tina Robinson, Prosecuting Attorney, and Randall A. Sutton, Deputy, for respondent.
AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Steven C. González, Justice Mary I. Yu. AUTHOR: Justice Charles W. Johnson. WE CONCUR: Justice Debra L. Stephens. AUTHOR: Justice Sheryl Gordon McCloud.
[183 Wn.2d 300] [¶1] Robert Barry appeals his conviction on two counts of child molestation, claiming that the trial court's instruction in response to a jury question violated his Fifth Amendment and Sixth Amendment rights under the United States Constitution. The jury asked the court whether it may consider " observations of the defendant's actions-demeanor during the court case" as " evidence." In response, the trial court instructed the jury that " [e]vidence includes what you witness in the courtroom." All parties [183 Wn.2d 301] agree that the record contains no references whatsoever to Barry's in-court demeanor and so we have no way of determining what aspects of Barry's " demeanor" drew the jury's attention and whether the jury's observations were favorable or unfavorable to Barry. We hold that the trial court's instruction did not amount to constitutional error; we instead apply the nonconstitutional error standard and affirm.
[¶2] The Fifth Amendment does not extend to the jury's generic reference to " actions-demeanor," and the Sixth Amendment does not transform all evidentiary errors into errors of constitutional magnitude. Consequently, no constitutional error occurred. Under the standard for nonconstitutional error, the record's silence on Barry's demeanor makes it impossible to determine that Barry was prejudiced. For these reasons, we affirm.
[¶3] The State charged Barry with two counts of child molestation in the first degree. During its deliberations, the jury sent a written question to the court: " Can we use as 'evidence' for deliberations our observations of the defendant's actions-demeanor during the court case?" The trial judge summoned counsel for both parties and informed them of the question. Neither the court nor counsel suggested anything that the jury may have observed that could have prompted the question. The record is devoid of any reference to the defendant's in-court demeanor and conduct.
[¶4] After some discussion regarding the proper response to the jury's question, the court noted that it had read case law stating that evidence includes what is witnessed in the courtroom. Defense counsel initially suggested that " perhaps [183 Wn.2d 302] the best answer is to just simply quote that language: 'The evidence includes what they witness in the courtroom.'" The court rephrased that into " [e]vidence includes what you witness in the courtroom." Defense counsel then reconsidered, expressing concern that the jury might interpret that answer as inviting the jury to take the defendant's " actions and demeanor as testimony." Nonetheless, the trial court ultimately decided to provide its proposed response to the jury. Defense counsel objected on the record. The jury convicted Barry on one of the two counts; it was unable to reach a verdict on the remaining count. Barry appealed.
[¶5] The Court of Appeals affirmed. State v. Barry, 179 Wn.App. 175, 317 P.3d 528 (2014). While the Court of Appeals noted that the trial court's instruction was " improper
in its overbreadth," id. at 178, it rejected Barry's constitutional arguments and held that the instruction was a nonconstitutional evidentiary error--i.e., the trial court let the jury consider something that was not admissible evidence. Id. at 181-82. Under the standard for this type of error, Barry had to show prejudice in order to obtain reversal. Id. The court held that Barry could not show such prejudice because the record contained no references to the defendant's conduct and behavior during trial. Id. at 182. We granted Barry's petition for review. 180 Wn.2d 1021, 328 P.3d 903 (2014).
STANDARD OF REVIEW
[¶6] Our standard of review depends on whether the court's error was constitutional or nonconstitutional. The Supreme Court held in Chapman v. California that " before [183 Wn.2d 303] a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (emphasis added). This stringent standard can be met if there is overwhelming evidence of the defendant's guilt that is not tainted by the error. State v. Nist, 77 Wn.2d 227, 233-34, 461 P.2d 322 (1969) (citing Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969)). The State bears the burden of demonstrating harmlessness. State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013) (citing Chapman, 386 U.S. at 24).
[¶7] " Where the error is not of constitutional magnitude, we apply the rule that 'error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'" State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (emphasis added) (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Under this nonconstitutional harmless error standard, " an accused cannot avail himself of error as a ground for reversal unless it has been prejudicial." Cunningham, 93 Wn.2d at 831. In assessing whether the error was harmless, we must measure the admissible evidence of the defendant's guilt against the prejudice, if any, caused by the inadmissible evidence. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
[¶8] Barry argues, relying on State v. Wanrow, 88 Wn.2d 221, 237-38, 559 P.2d 548 (1977), that all " instructional errors" are presumed prejudicial and subject to an intermediate standard of review. This is incorrect. We presume prejudice only when the erroneous instruction was " 'given on behalf of the party in whose favor the verdict was returned.'" Id. at 237 (quoting State v. Golladay, 78 Wn.2d 121, 139, 470 P.2d 191 (1970)). This requirement has been an essential component of this presumption from its inception. [183 Wn.2d 304] We noted in State v. O'Hara that " under Wanrow, situations could exist where a defendant or the trial court propose an erroneous jury instruction and the instruction is not presumptively prejudicial." 167 Wn.2d 91, 103, 217 P.3d 756 (2009). Barry presents precisely this situation. It was defense counsel that first suggested, during a back-and-forth discussion among defense counsel and the court, that the court instruct the jury that " evidence includes what you witness in the courtroom." The State agreed that the instruction was proper, but neither party proposed it nor
advocated for the language that the court ultimately chose. The instruction thus was not given on the State's behalf, and we therefore do not presume prejudice.
[¶9] We reject Barry's constitutional arguments and apply the nonconstitutional harmless error standard. Under that standard, the record's silence regarding Barry's in-court demeanor is fatal to his appeal.
[¶10] As noted above, the parties agree that the record lacks any evidence of the defendant's demeanor. Thus, neither party can " prove" one way or another whether the error was prejudicial. The burden, then, is the decisive issue, and that depends on whether the error was nonconstitutional (burden on defendant to show prejudice) or constitutional (burden on prosecution to show harmlessness).
[183 Wn.2d 305] [¶11] The State has conceded that the trial court's instruction was erroneous. We accept this concession for the purposes of this opinion and therefore do not reach whether a jury can ever consider a nontestifying defendant's demeanor or whether evidence may, in some circumstances, include other juror observations made during the course of a trial.
I. Fifth Amendment
[¶12] The trial court's instruction did not violate the Fifth Amendment's proscription against self-incrimination. Courts have almost unanimously held that the Fifth Amendment does not protect evidence of a defendant's actions or demeanor (hereinafter, demeanor evidence), a conclusion consistent with Fifth Amendment jurisprudence and the plain meaning of " demeanor." Courts have determined that consideration of demeanor evidence is constitutionally barred only if the demeanor is testimonial, or if it is merely the demeanor accompanying a defendant's silence or failure to testify. See United States v. Clark, 69 M.J. 438, 444-45 [183 Wn.2d 306] (C.A.A.F. 2011). There is no indication in the record that the question regarding Barry's courtroom demeanor was an oblique reference to testimonial conduct or Barry's failure to testify. Consequently, the trial court's response to the jury's inquiry did not violate Barry's Fifth Amendment rights.
A. " Demeanor" is not equivalent to " silence"
[¶13] We reject Barry's principal Fifth Amendment argument--that the court's response to the jury's question implicated the defendant's right to remain silent. In its general instructions, the trial court instructed the jury that " the fact that the defendant has not testified cannot be used to infer guilt or prejudice against him in any way," and that its instructions were to be taken as a whole. A jury is presumed to follow the court's instructions, State v. Foster, 135 Wn.2d 441, 472, 957 ...