FILED 


NOVEMBER 25,2014 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 31779-0-III 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

CARL J. PRICE, ) 

) 

Petitioner. ) 

LAWRENCE-BERREY, J. - The State may use a defendant's postarrest refusal to 

answer questions ifrelevant for a reason other than to infer guilt. Here, defense counsel 

elicited officer testimony that his client failed to answer a few questions toward the end of 

a postarrest interview. Defense counsel used this evidence to support his argument that 

his client was confused by a recent seizure, and that the jury should discount all evidence 

ofhow his client behaved after the seizure. The State rebutted this by arguing that the 

defendant's refusal to answer the last few interview questions was evidence that the 

defendant was thinking clearly. Because the argument was proper rebuttal, we affirm. 
No. 31779-0-III 

State v. Price 

FACTS 

In the early morning hours of April 30, 2009, Ephrata Police Officers Christopher 

Hufman and Jack McLauchlan observed Carl Price driving his truck in an alley behind 

the Ephrata police department. After a brief conversation with Mr. Price, the officers 

decided to follow him. Mr. Price failed to stop at a stop sign and then hit a curb while 

turning. Officer Hufman activated his lights and initiated a traffic stop. 

Upon contact with Mr. Price, Officer Hufman noticed that Mr. Price's eyes were 

watery, his pupils were dilated, and his speech was repetitive and slurred. Mr. Price was 

also argumentative. Officer Hufman noticed an intermittent faint smell of alcohol coming 

from the passenger compartment of the truck. 

Dispatch notified Officer Hufinan that Mr. Price's license was suspended. Officer 

Hufman asked Mr. Price to step out ofthe truck and advised him that he was under arrest 

for driving with a suspended license. Mr. Price refused to get out of the truck or tum off 

the ignition. Concerned for his safety, Officer Hufman advised Mr. Price that he would 

use his taser ifMr. Price did not comply. Mr. Price did not comply and the officer used 

his taser. Soon afterward, Mr. Price started having seizure-like symptoms and was taken 

to the hospital by ambulance. 

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No. 31779-0-111 

State v. Price 

While at the hospital, Officer Hufinan advised Mr. Price of his constitutional 

rights, including his right to remain silent. Officer Hufman conducted a driving while 

under the influence (DUI) interview ofMr. Price. The series of approximately 30 

questions Officer Hufman asked were formulated by the Washington State Patrol and 

found on the DUI arrest report. Mr. Price answered most ofthe questions, including 

giving responses on how many beers he consumed and when he started drinking. Toward 

the end of the questions, when asked about the time and location of his last drink and 

whether his ability to drive was affected by his alcohol use, Mr. Price did not answer. Mr. 

Price was issued a citation for DUI and driving with a suspended license. 

Prior to trial in district court, the court conducted a brief CrRLJ 3.5 hearing to 

determine the admissibility of Mr. Price's statements. The trial court ruled that the DUI 

interview was admissible in its entirety. 

At trial, Officer Hufinan testified that Mr. Price participated in the DUI interview. 

The State questioned Officer Hufman about Mr. Price's responses to the questions, but 

did not ask about the questions that Mr. Price did not answer. Officer Hufman also 

testified that in his opinion, Mr. Price was too intoxicated to safely operate a motor 

vehicle. Mr. Price objected to this opinion testimony. 

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No. 31779-0-II1 

State v. Price 

On cross-examination, defense counsel asked Officer Hufman about Mr. Price's 

reaction to question 28, which asked where he was drinking. Officer Hufman stated that 

Mr. Price acted confused and did not want to answer the question. Defense counsel 

emphasized that Officer Hufman noted in the report that Mr. Price "acted" confused 

rather than "played" confused. Clerk's Papers (CP) at 522. In its redirect, the State asked 

Officer Hufman whether Mr. Price appeared confused in response to other questions. 

Particularly when asked about question 29, the time of his last drink, Officer Hufman 

testified that Mr. Price refused to answer and did not give a confused response. He 

testified that Mr. Price also refused to answer question 30, regarding his ability to drive. I 

Mr. Price did not object to this testimony. 

In closing arguments, the State referenced Mr. Price's DUI interview. The 

prosecutor stated, 

Mr. Phelps, the defense attorney here ... I think he kind of tried to ask 

some questions maybe kind of kind indicating that ... maybe it was a 

response to the seizure, or the tasing, or some sort of medical issue created 

this confusion. But look at, look at some ofthe other questions here, when 

he was asked ... what kind of medicine do you take? He rattled off a list of 

vitamins and other things. [W]hen he was asked ... when was the time of 

your last drink? Well he refused to answer that question; there wasn't any 

confusion there, he didn't say ... that was in 1990 or whatever. You know, 

I We glean from our review ofthe record that Mr. Price did not say he refused to 

answer this or any other question; rather, Mr. Price avoided the questions by either 

"acting" or "playing" confused. 

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No. 31779-0-111 

State v. Price 

he knew what he was doing there. When he was asked "do you believe 

your ability to drive was affected by alcohol or drug usage", he refused to 

answer that question too. This wasn't ... a case of the brain being 

scrambled by that taser. 

CP at 586 (some alterations in original). Mr. Price did not object to these comments 

during the State's closing. Defense counsel countered: 

So you then have to decide after that point ... this man's been shot [by a 

taser], he's in convulsions, he's having seizures. And now, based on nine 

minutes of observation, [you] are supposed to decide if these officers were 

right and ifhe was affected by alcohol, and not by another condition ... not 

by tasering. And how did that all affect him? 1 would submit to you ladies 

and gentlemen that after they tasered him, and he goes into the seizures, 

everything from that point on after that nine minutes ... it's the effect of 

tasers, it's the effect of seizures, and whatever he tells them at that point is 

suspect and not credible evidence of intoxication. And that there is no 

evidence other than the nine minutes of observation that provides any 

evidence. 

CP at 595-96 (some alterations in original). 

Mr. Price was found guilty of driving under the influence. He appealed his 

conviction to superior court. He contended that Officer Hufman offered impermissible 

opinion testimony regarding Mr. Price's ability to operate a motor vehicle. He also 

contended that the State used his right to silence against him by inferring guilt from his 

refusal to answer certain questions during the DUI interview. The superior court affirmed 

the conviction. Mr. Price requested and was granted discretionary review by this court. 

On appeal, he asserts the same issues raised in superior court. 

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No. 31779-0-111 

State v. Price 

ANALYSIS 

Prosecutorial Misconduct. Mr. Price contends that the State committed 

prosecutorial misconduct by improperly commenting on his right to silence. Mr. Price 

failed to object to the State's comment at trial. However, Mr. Price may raise this issue 

for the first time on appeal because it amounts to a manifest error affecting a 

constitutional right. State v. Romero, 113 Wn. App. 779, 786, 54 PJd 1255 (2002). 

"To establish prosecutorial misconduct, a defendant must show both improper 

conduct and resulting prejudice." State v. Embry, 171 Wn. App. 714, 749, 287 PJd 648 

(2012), review denied, 177 Wn.2d 1005,300 P.3d 416 (2013). "We review a prosecutor's 

comments during closing argument in the context of the total argument, the issues in the 

case, the evidence addressed in the argument, and the jury instructions." Id. 

A defendant's right against self-incrimination, or right to remain silent, is equally 

protected by both the federal constitution and the Washington Constitution. State v. 

Mecca Twin Theater & Film Exch., Inc., 82 Wn.2d 87, 91,507 P.2d 1165 (1973). The 

right against self-incrimination prohibits the State from forcing the defendant to testify 

against himself or herself. State v. Foster, 91 Wn.2d 466,473,589 P.2d 789 (1979). 

When a defendant invokes'his right to silence, "the State may not elicit comments from 

witnesses or make closing arguments relating to a defendant's silence to infer guilt from 

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No. 31779-0-111 

State v. Price 

such silence." State v. Easter, 130 Wn.2d 228,236,922 P.2d 1285 (1996). Likewise, the 

State may not comment on silence by inferring guilt from a refusal to answer questions. 

State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996). 

In addition to Fifth Amendment concerns, when silence is invoked in the postarrest 

context "it is a violation of due process for the State to comment upon or otherwise 

exploit a defendant's exercise of his right to remain silent." Romero, 113 Wn. App. at 

786-87. Miranda2 warnings provide assurance to a defendant that he or she will not be 

penalized for remaining silent in spite of the State's accusations. State v. Terry, 181 Wn. 

App. 880, 889, 328 P.3d 932 (2014). 

After questioning begins, it is possible for a defendant to invoke a right to silence 

but the invocation of the right must be clear and unequivocal. Embry, 171 Wn. App. at 

750. "[A]n invocation must be sufficiently clear 'that a reasonable police officer in the 

circumstances would understand the statement to be [an invocation of Miranda rights].'" 

State v. Piatnitsky, 180 Wn.2d 407, 413,325 P.3d 167 (2014) (some alterations in 

original) (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 1291. Ed. 

2d 362 (1994)). A brief failure to respond to an officer's question while answering others 

does not establish an invocation of the right. State v. Hodges, 118 Wn. App. 668, 672-73, 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 161. Ed. 2d 694 (1966). 

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No. 31779-0-III 

State v. Price 

77 P.3d 375 (2003). "A defendant normally does not invoke the privilege by remaining 

silent." Salinas v. Texas, _ U.S. _, 133 S. Ct. 2174, 2176, 186 L. Ed. 2d 376 (2013) 

(plurality opinion). 

In State v. Bradfield, 29 Wn. App. 679, 684, 630 P.2d 494 (1981), the defendant 

waived his Miranda rights and answered law enforcement's interview questions except 

those pertaining to the alleged murder. At trial, a detective testified that the defendant 

said he did not want to talk about the murder. ld. On appeal, the defendant contended 

that the detective's testimony violated his right to silence. ld. The State argued that the 

defendant did not unambiguously invoke his right to remain silent when he refused to 

answer questions and continued his conversation with law enforcement. ld. at 684-85. 

By indicating that he would respond to some questions and not to others, the State 

maintained that the defendant selectively waived his Fifth Amendment rights. ld. at 685. 

The court agreed with the State, holding that the defendant's "nonstatements" were 

admissible. ld. The court ruled, "The defendant cannot be permitted to rely upon 

Miranda when he attempts to toy with the police by telling [them] only facts which he 

wants them to hear." ld. 

Similarly in Embry, the defendant waived his Miranda rights and answered 

questions associated with the alleged crime. Embry, 171 Wn. App. at 750. However, the 

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No. 31779·0-II1 

State v. Price 

defendant refused to answer questions that implicated others in the crime. Id. At trial, a 

detective commented that the defendant made it clear that he would not cooperate or 

testify against others. Id. The State commented during closing argument that the'" code 

of the street'" was not to talk to police. Id. at 751. The State continued, '" Well, any 

criminal, of course, committing an act won't talk to the police. That makes sense because 

they are going to jail. They're going to be held accountable.'" Id. On appeal, the court 

rejected the defendant's argument that the State impermissibly commented on his right to 

remain silent. Id. at 748. The court held that the defendant did not clearly and 

unequivocally invoke his right to silence. Id. at 751. "[W]hen a defendant does not 

remain silent and instead talks to police, the State may comment on what the defendant 

does not say." Id. at 750. 

Finally, in Curtiss, the defendant waived her Miranda rights and confessed to 

rendering criminal assistance to covering up a murder, but denied committing the murder. 

State v. Curtiss, 161 Wn. App. 673, 685·86, 250 P.3d 496 (2011). The detective 

conducting the interview told the defendant that he believed that she arranged and was 

present during the murder, to which the defendant tardily replied that she could not 

remember. Id. at 686. At trial, the detective testified that the defendant did not react to or 

deny his accusations. Id. at 691-92. During closing arguments, the State reminded the 

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No. 31779-0-III 

State v. Price 

jury that the defendant did not deny the accusations when confronted by the detective, but 

instead answered that she did not remember. Id. at 699. On appeal, the defendant 

contended that the detective and the prosecutor commented on her right to remain silent. 

Id. at 691,698-99. The court ruled that the defendant did not invoke her right to silence 

during the interview, thus the detective's testimony and the prosecutor's statement 

regarding her lack ofresponse to certain interview questions was not improper. Id. at 

692,699. 

Here, defense counsel was the first to elicit evidence of his client's silence. 

Defense counsel used this evidence to argue that his client was still affected by his recent 

seizure, and that the jury should discount everything his client said or did following his 

seizure. The prosecution, anticipating this argument, commented on Mr. Price's silence, 

not to infer guilt but, instead, as evidence that Mr. Price was thinking clearly. Because 

the prosecution did not use Mr. Price's silence to infer guilt, there is no prosecutorial 

misconduct. Moreover, even ifwe were to hold otherwise, Mr. Price's nonverbal 

"confusion" is not a clear and unequivocal invocation of his right to remain silent. For 

this second reason, there is no prosecutorial misconduct. 

Mr. Price relies erroneously on Easter to support his argument. In Easter, the 

defendant invoked his right to silence when he did not speak to officers when questioned. 

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No. 31779-0-111 

State v. Price 

Easter, 130 Wn.2d at 230. The court held that the State violated the defendant's Fifth 

Amendment right when the prosecutor called attention to the prearrest silence to imply 

guilt. Id. at 242-43. When compared to Mr. Price's situation, the significant differences 

are that the State did not use Mr. Price's silence to infer guilt, and Mr. Price did not 

unequivocally invoke his right to silence. 

Admissibility ofO(flcer 's Opinion ofIntoxication. Mr. Price contends that the trial 

court abused its discretion by allowing Officer Hufman's opinion testimony. The State 

asked Officer Huffman, "[I]n your opinion officer, based on the training and experience, 

was the defendant intoxicated to a level where he could not safely operate a motor 

vehicle?" CP at 483. Mr. Price objected, and the trial court overruled his objection. 

Officer Hufman responded, "In my opinion, he was too intoxicated to operate a vehicle." 

CP at 483. 

A trial court's admission of evidence is reviewed for an abuse of discretion. State 

v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). An abuse of discretion occurs 

when the trial court's decision is manifestly unreasonable or based upon untenable 

grounds or for untenable reasons. Id. (quoting State v. Powell, 126 Wn.2d 244,258, 893 

P.2d 615 (1995)). 

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No. 31779-0-111 

State v. Price 

Generally, a witness may not testify "to his opinion as to the guilt of a defendant, 

whether by direct statement or inference." State v. Black, 109 Wn.2d 336,348, 745 P.2d 

12 (1987). Opinion testimony can be unfairly prejudicial because it invades the province 

ofthe fact finder. Id. Conversely, "testimony that is not a direct comment on the 

defendant's guilt or on the veracity of a witness, is otherwise helpful to the jury, and is 

based on inferences from the evidence is not improper opinion testimony." City a/Seattle 

v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993). Opinion testimony that involves 

crucial issues disputed for the trier of fact is admissible as long as the testimony does not 

give a direct opinion on the defendant's guilt. Id. "The fact that an opinion 

encompassing ultimate factual issues supports the conclusion that the defendant is guilty 

does not make the testimony an improper opinion on guilt." Id. at 579. 

Washington allows a lay witness to express an opinion on the degree of 

intoxication of a person when the witness had the opportunity to observe the affected 

person. Id. at 580. "[W]here the testimony is supported by proper foundation, the trial 

court has discretion to admit opinion testimony on the degree of intoxication in a 

prosecution for driving while under the influence." Id. at 582. 

In Heatley, an officer who responded to the defendant's traffic stop testified that 

the defendant was intoxicated and impaired to the extent that he could not drive safely. 

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No. 3 I 779-0-II1 

State v. Price 

Id. at 580. The court held that the officer's testimony was admissible because the officer 

did not give a direct opinion on the defendant's guilt. Id. at 579. Furthermore, the 

testimony was based on the officer's experience and observations of the defendant and 

was helpful to the trier of fact. Id. at 579-80. 

Here, like Heatley, the trial court did not abuse its discretion by allowing Officer 

Hufman to opine that Mr. Price's level of intoxication was such that he could not safely 

operate a motor vehicle. This testimony is not an improper opinion on guilt. Rather, this 

testimony was supported by Officer Hufman's experience and observations of Mr. Price, 

and the trial court could reasonably determine that such an opinion would be helpful to a 

trier of fact. The trial court did not abuse its discretion by allowing Officer Hufman to 

offer this opinion testimony. 

We affirm. 

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. 


Lawrence-Berrey, J. 

WE CONCUR: 

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