### FILED NOVEMBER25,2014 In the Office ofthe ClerkofCourt WA StateCourtofAppeals, Division III

INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 31779-0-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) CARL 

### J. PRICE, ) ) Petitioner. ) LAWRENCE-BERREY, 

### J.

- The State may use a defendant'spostarrestrefusal to
answerquestions ifrelevant for a reason otherthan to infer

### guilt. Here, 

### defense counsel elicited officertestimony that his client failed to answera few questions towardthe end of
apostarrest interview. Defense counsel used this evidence to supporthis argument that his clientwas confused by a recent seizure, and that thejury should discountall evidence ofhow his clientbehaved afterthe seizure. The State rebutted this by arguing that the defendant's refusal to answerthe last few interview questions was evidence thatthe defendant wasthinking clearly. Becausethe argumentwas properrebuttal, we affirm.No. 31779-0-III 

### State v. 

### Price
FACTS In the early morning hours ofApril 30, 2009, Ephrata Police Officers Christopher Hufman and Jack McLauchlan observed Carl Price driving his truck in an alley behind the Ephratapolice department. After a briefconversation with Mr. Price, the officers decidedto follow him. Mr. Price failed to stop at a stop sign and then hit a curb while turning. Officer Hufman activatedhis lights and initiated a traffic stop. Upon contactwith 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. OfficerHufman noticed an intermittent faint smell ofalcohol coming from the passengercompartment ofthetruck. Dispatchnotified OfficerHufinanthat 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 outofthe truck or tum off the ignition. Concerned for his safety, OfficerHufman advisedMr. Pricethat he would
use his taser ifMr. Price did not comply. Mr. Price did not comply andthe officerused his taser. Soon afterward, Mr. Price startedhaving seizure-like symptoms and was taken to the hospital by ambulance.

2No. 31779-0-111 State 

### v. Price
While atthe hospital, OfficerHufinan advised

### Mr. Price ofhis constitutional rights, including his right to remain silent. Officer Hufman conducted a driving while under the influence (DUI) interview ofMr. Price. The series ofapproximately 30 questions OfficerHufman askedwere formulated by the Washington StatePatrol and found onthe DUI arrest report. Mr. Price answered most ofthe questions, including giving responses onhowmanybeers he consumed and when he started drinking. Toward the end ofthe questions, when asked about the time and location ofhis last drink and whetherhis ability to drive was affectedby his alcohol use, 

### Mr. Price did not answer. Mr. Price was issued a citation for DUI and driving with a suspended license. Priorto trial in district court, the court conducted a briefCrRLJ 3.5 hearingto determine the admissibility ofMr. Price's statements. The trial court ruled thatthe DUI interview was admissible in its entirety. Attrial, OfficerHufinan testified that Mr. Priceparticipated inthe DUI interview. The State questioned OfficerHufman about Mr. Price'sresponses to the questions, but did not ask about the questions that Mr. Price did not answer. OfficerHufman also testified that in his opinion, Mr. Pricewas too intoxicated to safely operate a motor vehicle. Mr. Price objectedto this opinion testimony.

3

### No. 31779-0-II1 State v. Price
On cross-examination, defense counsel asked Officer Hufman about Mr. Price's reactionto question 28, which asked where he was drinking. Officer Hufman stated that 

### Mr. Price acted confused and did not want to answerthe question. Defense counsel emphasizedthat Officer Hufman noted in the report that Mr. Price "acted" confused ratherthan "played" confused. Clerk's Papers (CP) at 522. In its redirect, the State asked OfficerHufman whether Mr. Price appeared confused in response to other questions. Particularly when asked about question 29, the time ofhis last drink, OfficerHufman testifiedthatMr. Price refused to answer and did not give a confusedresponse. He testified that Mr. Price also refusedto answer question 

### 30, regarding his ability to drive. I 

### Mr. Price did not objecttothis 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 oftriedto ask some questions maybe kind ofkind indicating that
... maybe it was a response to the seizure, orthe tasing, or some sort ofmedical issue created this confusion. But look at, look at some ofthe other questions here, when he was asked
... what kind ofmedicine do you take? Herattled offa list of vitamins and other things. [W]hen he was asked
...when was the time of your last drink? Well he refusedto answer that question; there wasn't any confusion there, he didn't say ...that was in 

### 1990 orwhatever. You know,
I We glean from our review ofthe recordthat Mr. Price did not say he refused to answerthis orany other question; rather, 

### Mr. Price avoided the questions by either "acting" or "playing" confused. 

### 4No. 31779-0-111 State 

### v. Price
he knew what he was doing there. When he was asked "doyou believe your ability to drive was affected by alcohol or drug usage", he refused to answer that question too. This wasn't
...a case ofthe brain being scrambled by that taser. CP at 586 (some alterations in original). Mr. Price did not objectto these comments during the State's closing. Defense counsel countered: So you then have to decide after that point
...this man'sbeen shot [by a taser], he's in convulsions, he'shaving seizures. And now, based on nine minutes ofobservation, [you] are supposed to decide ifthese officers were right and ifhewas affected by alcohol, and notby another condition
...not by tasering. And how did that all affecthim? 1would submit to you ladies and gentlemen that afterthey tasered him, and he goes into the seizures, everything from thatpoint on after that nine minutes
... it's the effect of tasers, it's the effect ofseizures, and whateverhe tells them at thatpoint is suspect and not credible evidence ofintoxication. Andthat there is no evidence otherthan the nine minutes ofobservation thatprovides any evidence. CP at 595-96 (some alterations in original). 

### Mr. Price was found guilty ofdriving under the influence. He appealed his conviction to superior court. He contendedthat OfficerHufman offered impermissible opinion testimony regarding 

### Mr. Price's ability to operate a motorvehicle. He also contended that the Stateused 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. 

### 5No. 31779-0-111 State v. Price
ANALYSIS ProsecutorialMisconduct. Mr. Price contends that the State committed prosecutorial misconduct by improperly commenting on his right to silence. Mr. Price failed to objectto the State's comment at trial. However, Mr. Price may raise this issue for the first time on appeal because itamounts 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 1005,300P.3d 416 (2013). "Wereview aprosecutor's comments during closing argument in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and thejuryinstructions." Id. A defendant's right against self-incrimination, orright 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 defendantto testify against himselfor 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
6No. 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 FifthAmendment concerns, when silence is invoked in the postarrest context "it is a violation ofdue process for the State to comment upon or otherwise exploit a defendant's exercise ofhis right to remain silent." 

### Romero, 113 Wn. App. at 

### 786-87. Miranda2warnings provide assurance to a defendant that he or she will not be penalized for remaining silent in spite ofthe 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 ofthe 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 statementto 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. 

### UnitedStates, 512 U.S. 452, 459, 114 S. Ct. 2350, 1291. Ed. 2d 362 (1994)). A brieffailure to respond to an officer's question while answering others does not establish an invocation ofthe 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). 7No. 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 pertainingto the alleged murder. Attrial, a detective testified that the defendant said he did not want to talk about the murder. 

### ld. On appeal, the defendant contended thatthe detective's testimony violated his right to silence. 

### ld. The State argued that the defendant did notunambiguously invoke his right to remain silent when he refused to
answer questions and continuedhis conversation with law enforcement. 

### ld. at 684-85. By indicatingthat he would respond to some questions and not to others, the State maintainedthatthe defendant selectively waivedhis Fifth Amendment rights. 

### ld. at 685. The court agreed with the State, holdingthatthe defendant's "nonstatements" were admissible. 

### ld. The courtruled, "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


### 8No. 31779·0-II1 State v. Price
defendantrefused to answerquestions that implicated others in the crime. 

### Id. At trial, a detective commentedthatthe defendant made it clearthat he would not cooperate or testify against others. 

### Id. The State commentedduring closing argument thatthe'" code ofthe street'" was notto talk to police. 

### Id. at 751. The State continued, '"Well, any criminal, ofcourse, committing an act won't talk to thepolice. That makes sensebecause they are going tojail. They're going to beheld accountable.'" 

### Id. On appeal, the court rejected the defendant's argument thatthe State impermissibly commented onhis rightto remain silent. 

### Id. at 748. The courtheld thatthe defendant did notclearly and unequivocally invoke his right to silence. 

### Id. at751. "[W]hen a defendant does not remain silent and instead talks topolice, the Statemay commentonwhatthe defendant does not say." 

### Id. at 750. Finally, in Curtiss, the defendantwaivedherMiranda 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 interviewtold 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. Attrial, 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
9No. 31779-0-III State 

### v. Price jurythat 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 herright to remain silent. Id. at 691,698-99. The courtruledthatthe 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 ofhis client's silence. Defense counsel used this evidenceto argue that his clientwas still affectedby his recent seizure, and thatthejury should discount everything his client said or did following his seizure. Theprosecution, 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 noprosecutorial misconduct. Moreover, even ifwe were to hold otherwise, Mr. Price's nonverbal "confusion" is not a clear and unequivocal invocation ofhis right to remain silent. For this second reason, there is no prosecutorial misconduct. Mr. Price relies erroneously onEaster to supporthis argument. InEaster, the defendant invoked his rightto silence whenhe did not speakto officers when questioned.


### 10No. 31779-0-111 State v. Price Easter, 130 Wn.2d at 230. The court held that the State violated the defendant's Fifth Amendmentright 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. AdmissibilityofO(flcer's Opinion of Intoxication. Mr. Price contends that the trial court abused its discretion by allowing OfficerHufman'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, "Inmy opinion, he was too intoxicated to operate a vehicle." CP at 483. A trial court's admission ofevidence is reviewed for an abuse ofdiscretion. State
v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). An abuse ofdiscretion occurs when the trial court's decision is manifestly unreasonable orbased upon untenable grounds or for untenable reasons. Id. (quoting State v. Powell, 126 Wn.2d 244,258, 893 P.2d 615 (1995)).

11No. 31779-0-111 

### State v. 

### Price Generally, a witness may not testify "tohis opinion as to the guilt ofa defendant, whether by direct statement or inference." 

### State v. 

### Black, 109 Wn.2d 336,348, 745 P.2d 12 (1987). Opinion testimony can be unfairlyprejudicial because it invades the province ofthe fact finder. Id. Conversely, "testimonythat is not a direct comment on the defendant's guilt or on the veracity ofa witness, is otherwise helpful to thejury, 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 offact 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 onthe degree of intoxication ofa 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 courthas discretion to admit opinion testimony on the degree ofintoxication 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 impairedto the extentthat he could not drive safely.
12No. 3 I779-0-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 ofthe defendant and
was helpful tothe trier offact. 

### Id. at 579-80. Here, likeHeatley, the trial court did not abuse its discretion by allowing Officer Hufman to opine that Mr. Price's level ofintoxication was such that he couldnot safely operate a motor vehicle. This testimony is not an improper opinion on guilt. Rather, this testimony was supportedby Officer Hufman's experience and observations ofMr. Price, and the trial court could reasonably determine that such an opinion wouldbe helpful to a trier offact. The trial court did not abuse its discretion by allowing OfficerHufmanto offerthis opinion testimony. We affirm. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Lawrence-Berrey, 

### J. WE CONCUR:



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