FILED JUNE 10, 2025 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. 40152-9-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) AUSTIN JAMES BUTLER, ) ) Appellant. )
LAWRENCE-BERREY, C.J. — The person who shot Angel Lopez was the father of
Jasmin Bailon’s then unborn child, had access to two of Bailon’s cars, and likely lived
with her. The State presented compelling evidence that this person was Austin Butler.
Butler appeals his convictions for attempted first degree murder, drive-by
shooting, and unlawful possession of a firearm in the first degree. He argues the trial
court erred by admitting the booking form that asked for and contained his mailing
address, the same address as Bailon’s. He argues the arresting officer should have known
that a request for his address was reasonably likely to elicit an incriminating response.
We agree but conclude that this error is harmless beyond a reasonable doubt.
Butler also argues his constitutional right against self-incrimination was violated
by the State asking the jury to draw negative inferences from Bailon’s silence, i.e., not No. 40152-9-III State v. Butler
wanting to talk with the detective. We disagree. Bailon testified at trial, and the
prosecutor did not comment or reference, directly or indirectly, Butler’s invocation of his
right to remain silent. The State was entitled to argue the reasonable inference that
Bailon avoided talking to the detective so as not to implicate Butler, who she testified she
loved.
We affirm.
FACTS
A. The Shooting
Angel Lopez and Jasmin Bailon were once romantically involved. Their
relationship ended, and they stopped communicating with each other about one year
before the shooting.
Around 1:30 a.m. on March 4, 2022, someone with access to Bailon’s Facebook
account began sending messages to Lopez. Lopez woke up shortly before 2:30 a.m. and
responded. After a lengthy exchange of messages, Lopez agreed to meet the person, who
he believed was Bailon, outside his house. At 3:38 a.m., Lopez received a text from
Bailon’s Facebook account reading, “Outside.” Clerk’s Papers (CP) at 155.
Lopez recognized Bailon’s black Jeep parked on the street and walked toward it.
As he approached, Lopez assumed Bailon was inside but could not tell because of the
Jeep’s tinted glass. As Lopez walked around to the passenger side, he saw a man he did
2 No. 40152-9-III State v. Butler
not know step out of the driver’s side. The driver walked around the front of the Jeep,
glared at Lopez, said that Bailon was pregnant with his child, and demanded that Lopez
stop talking to her. Lopez responded that he did not know that Bailon was involved with
someone, and he then turned to walk back to his house. The driver fired six shots at
Lopez, hitting him once in the thigh and once in the upper glute. Lopez turned and saw
his attacker tuck the weapon away and drive off. Lopez called 911 to report he had been
shot and to ask for medical assistance.
Police officers arrived before the ambulance. Lopez spoke with Officer John
Oliveri and confirmed that Bailon was the owner of the black Jeep. Officer Oliveri
obtained Bailon’s address from the police database and headed to her apartment on
Browne Avenue in Yakima.
Surveillance video from a church across from Bailon’s apartment showed the
activity outside Bailon’s apartment around the time of the shooting. The video showed
the black Jeep returning at 3:48 a.m., and the Jeep’s driver entering Bailon’s apartment.
At 3:59 a.m., the driver left in Bailon’s white 1997 Toyota Camry. Two minutes later,
Officer Oliveri arrived at the apartment and additional officers arrived soon after.
Officers confirmed that the black Jeep’s hood was warm and seized it as evidence.
Officers knocked on Bailon’s apartment door, but she did not answer. The surveillance
3 No. 40152-9-III State v. Butler
video, which was later obtained, confirmed that Bailon was inside her apartment at the
time the officers knocked on her door.
B. The Investigation
On March 4, while Lopez was recovering at the hospital, he searched Bailon’s
Facebook page in an effort to identify his shooter. He found posts on her page depicting
Austin Butler, who Lopez identified as the shooter. Lopez called the police tip line and
informed law enforcement that Austin Butler was the person who shot him. Later that
day, the Facebook posts linking Bailon with Butler either became restricted from public
view or were deleted from the platform. An arrest warrant was issued for Butler.
Detective Kevin Cays began investigating the case on March 7. After a couple of
failed attempts to meet with Bailon, Detective Cays met her at her apartment on March 9.
The detective asked Bailon if Austin was driving her Jeep the early morning hours of the
shooting, and she responded, “Whose [sic] Austin.” Rep. of Proc. (RP) at 1090.
C. The Arrest
One month after the shooting, Officer Oliveri was on patrol and stopped a white
1997 Toyota Camry for a defective brake light. Before the stop, Officer Oliveri had
received an e-mail from Detective Cays to be on the lookout for Bailon’s white Toyota
Camry. Officer Oliveri obtained the driver’s identification and learned that the driver
was Butler and that the Camry belonged to Bailon. Officer Oliveri arrested Butler and
4 No. 40152-9-III State v. Butler
read him his Miranda 1 rights. Butler stated he understood his rights and invoked his
right to remain silent. Officer Oliveri then transported Butler to the local jail for booking.
Once at the jail,2 Officer Oliveri completed a standard booking form. One
question asked for Butler’s mailing address. Officer Oliveri asked Butler for his address,
and Butler responded with Bailon’s Browne Avenue address.
D. Trial
The State charged Butler with attempted murder in the first degree, assault in the
first degree, drive-by shooting, and unlawful possession of a firearm in the first degree.
At trial, Lopez testified about the shooting, having no doubt that Butler was the person
who shot him, how he identified Butler as the shooter from Bailon’s Facebook page, and
how someone with access to her account soon after changed its settings.
The State introduced the booking form as evidence that Butler lived at the Browne
address at the time of the shooting. It also introduced the surveillance video that tied the
shooter to the black Jeep, the white Toyota Camry, and Bailon’s apartment. But because
it was dark, the driver could not be identified in the video. Nevertheless, as discussed
1 Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 When questioned during the motion to suppress the booking form, Officer Oliveri could not recall if he was sitting inside his car in the jail’s sally port or at a desk when he asked Butler the questions. During a break in the trial, the parties learned that the officer asked Butler his address at the scene of the stop and once again inside the sally port, where, both times, his patrol car’s COBAN audio/video unit recorded the pertinent portions of the conversation. The COBAN recording is not part of our record.
5 No. 40152-9-III State v. Butler
later, the State used several pieces of evidence to tie Butler to the black Jeep, to the white
Toyota Camry, to Bailon’s apartment, and to being the father of Bailon’s then unborn
child.
The State called Bailon and had her testify about her relationship with Butler.
Bailon testified that she met Butler in early 2021. She described their relationship as an
on-and-off romantic relationship. She said she loved Butler. She testified she was five
months pregnant at the time of the shooting, did not know who the father was, but gave
her baby the last name “Butler.” RP at 942. The State, through her, offered photos found
on Butler’s phone, showing the couple hugging and kissing less than two days before the
shooting.
The State also presented evidence that Bailon tried to protect Butler throughout the
investigation. She failed to appear for her first meeting with the detective, failed to return
the detective’s telephone calls, and testified she did not give Butler permission to drive
her black Jeep or know whether he was staying at her apartment at the time of the
The jury convicted Butler of all charges,3 and the trial court sentenced Butler to
408 months of incarceration.
3 The trial court properly vacated the assault conviction because that conviction merged into attempted murder, the greater charge.
6 No. 40152-9-III State v. Butler
Butler appeals to this court.
ANALYSIS
HARMLESS ERROR ADMITTING BOOKING FORM
Butler argues the trial court erred by admitting the booking form. We agree but
conclude that the error was harmless beyond a reasonable doubt.
The Fifth Amendment to the United States Constitution provides that “[n]o person
. . . shall be compelled in any criminal case to be a witness against himself.” To counter
the inherent compulsion of custodial interrogations, police must administer Miranda
warnings. Miranda warnings are required when the questioning of a defendant is a
custodial interrogation by an agent of the State. State v. Sargent, 111 Wn.2d 641, 647,
762 P.2d 1127 (1988). Once a suspect invokes his right to remain silent, the interrogation
must cease. Miranda, 384 U.S. at 473-74.
Here, Officer Oliveri questioned Butler one month after the shooting. There is no
question that Butler was in custody, was questioned by an agent of the State, and had
invoked his right to remain silent. The issue is whether the booking question of Butler’s
address was an interrogation.
An “interrogation,” for Fifth Amendment purposes,
7 No. 40152-9-III State v. Butler
“refers not only to express questioning, but also to any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.”
Sargent, 111 Wn.2d at 650 (quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct.
1682, 64 L. Ed. 2d 297 (1980)).
Generally, routine booking questions do not violate the prohibition against
interrogations because such questions rarely elicit an incriminating response. State v.
DeLeon, 185 Wn. App. 171, 199, 341 P.3d 315 (2014), rev’d on other grounds,
185 Wn.2d 478, 374 P.3d 95 (2016). Nevertheless, simply because booking questions
typically are nonincriminating does not shield incriminating questions from Miranda
protections. State v. Denney, 152 Wn. App. 665, 670, 218 P.3d 633 (2009). The focus is
not on the nature of the question but whether the question was reasonably likely to elicit
an incriminating response. Id.
This is an objective test where the subjective intent of the questioner is relevant
but not conclusive. Id. at 671. This will turn on the particular facts of each case, and
questions that “relate, even tangentially, to criminal activity” are interrogations. United
States v. Avery, 717 F.2d 1020, 1024 (6th Cir. 1983). Courts “should carefully scrutinize
the factual setting of each encounter of this type” because even a “relatively innocuous
series of questions may, in light of the factual circumstances and the susceptibility of a
8 No. 40152-9-III State v. Butler
particular suspect, be reasonably likely to elicit an incriminating response.” Id. at 1025.
Even answers in response to standard booking questions are subject to Fifth Amendment
protections. DeLeon, 185 Wn.2d at 487.
Officer Oliveri knew, at the time he was booking Butler, that the person who
drove the black Jeep and took the white Camry in the early morning hours of March 4
was the person who shot Lopez. He knew that Bailon owned both vehicles and likely
allowed the shooter to use one or both vehicles.4 Therefore, any fact that more closely
tied Butler to Bailon was likely to elicit an incriminating response.
During the motion to suppress the booking form, Officer Oliveri testified he had
no reason to believe Butler lived at the Browne Avenue address. Although Officer
Oliveri’s purpose for asking Butler for his address is relevant, it is not dispositive.
Officer Oliveri had early responsibility for investigating this case and spoke with Lopez
before the ambulance arrived to take him to the hospital. After this, Officer Oliveri was
the first officer to arrive at Bailon’s apartment. In addition, he had received an e-mail
from the detective to be on the lookout for Bailon’s white Toyota Camry. Given the
nature of his involvement with the investigation, Officer Oliveri should have known that
questioning Butler about his address was reasonably likely to elicit an incriminating
4 Officer Oliveri did not arrest Butler for possession of a stolen vehicle. We may infer from this that Bailon did not report the Camry as stolen.
9 No. 40152-9-III State v. Butler
response tying Butler to Bailon. We conclude that the booking question in this particular
case was an interrogation and that the trial court erred by admitting the booking form.
“‘[I]f trial error is of constitutional magnitude, prejudice is presumed and the
State bears the burden of proving it was harmless beyond a reasonable doubt.’” State v.
Lynch, 178 Wn.2d 487, 494, 309 P.3d 482 (2013) (alteration in original) (quoting State v.
Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013)). Our State has adopted the
“overwhelming untainted evidence” test as the proper standard for constitutional
harmless error analysis. State v. Frost, 160 Wn.2d 765, 782, 161 P.3d 361 (2007). Under
this standard, an appellate court looks only at the untainted evidence to determine if it is
so overwhelming that it necessarily leads to a finding of guilt. Id. This requires proof
beyond a reasonable doubt that any reasonable jury would have reached the same result
in the absence of the error. Id.
The State’s proof of Butler’s guilt was overwhelming, and included:
• The shooter identified himself as the father of Bailon’s unborn child;
• Bailon was five months pregnant at the time of the shooting;
• Bailon gave the child Butler’s last name;
• Bailon twice wrote to the trial court, referring to Butler as the father of the
child;
10 No. 40152-9-III State v. Butler
• Butler posted a picture of himself and Bailon, saying something like, “‘[T]his
is my girl. She’s 5 months pregnant.’” RP at 655.
• The shooter drove Bailon’s black Jeep back to Bailon’s apartment minutes
after the shooting, went inside the apartment, and later left in Bailon’s 1997
white Toyota Camry;
• A little over an hour after the 3:40 a.m. shooting, Butler did a Google search
for a police scanner;
• The morning of the shooting, Butler did a Google search for Greyhound bus
schedules from Yakima to Georgia;
• That afternoon, someone with access to Bailon’s Facebook settings changed
her settings to hide Bailon and Butler’s relationship;
• Butler likely had Bailon’s 1997 white Toyota Camry the day after the shooting
because at 5:00 p.m. that day, Butler did a Google search for how to deactivate
an alarm on a 1997 Toyota Camry;
• Butler was stopped by police one month after the shooting while driving
Bailon’s Toyota Camry;
• A Department of Corrections (DOC) form completed by Butler in June 2021
gave his address as Bailon’s Browne Avenue address;
11 No. 40152-9-III State v. Butler
• Butler was required to inform his DOC officer of any change in address.
January 25, 2022 was when he last met with his DOC officer, and he did not
inform the officer that his address had changed from the Browne Avenue
address;
• Butler’s Google profile showed he and Bailon shared the Browne Avenue
address for billing purposes;
• Butler’s DNA was found on the Jeep’s exterior driver’s handle, interior door
controls and handle, and steering wheel.
We conclude there is overwhelming untainted evidence of Butler’s guilt, and the
State has proved beyond a reasonable doubt that any reasonable jury would have reached
the same result, absent admission of the booking form.5
5 In his statement of additional grounds for review (SAG), Butler argues he received ineffective assistance of counsel due to trial counsel’s failure to recall Officer Oliveri and confront him with the late-discovered COBAN recording in which Butler gave multiple addresses, not just the Browne Avenue address. The COBAN recording was not admitted at trial, is not part of our record, and we are unable to confidently measure the prejudice, if any, caused by counsel’s failure to recall Officer Oliveri. Rather than rule that the error, if any, could not satisfy the ineffective assistance of counsel prejudice prong (because of overwhelming evidence of Butler’s guilt), we leave the SAG issue open so Butler might file a timely personal restraint petition. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
12 No. 40152-9-III State v. Butler
NO VIOLATION OF BUTLER’S RIGHT TO REMAIN SILENT
Butler argues the State violated his Fifth Amendment right to remain silent by
arguing negative inferences from Bailon’s unwillingness to talk with the detective, or as
Butler terms it, Bailon’s “silence.” We disagree. As discussed below, the State neither
commented on nor referred to Butler’s silence, either directly or indirectly.
The Fifth Amendment prevents individuals from being “compelled in any criminal
case to be a witness against himself.” The Washington Constitution also states that “[n]o
person shall be compelled in any criminal case to give evidence against himself.” WASH.
CONST. art. I, § 9. Courts interpret these two provisions equivalently. State v. Easter,
130 Wn.2d 228, 235, 922 P.2d 1285 (1996). “The State can take no action which will
unnecessarily ‘chill’ or penalize the assertion of a constitutional right and the State may
not draw adverse inferences from the exercise of a constitutional right.” State v. Rupe,
101 Wn.2d 664, 705, 683 P.2d 571 (1984).
“[T]he State may not elicit comments from witnesses or make closing arguments
relating to a defendant’s silence to infer guilt from such silence.” Easter, 130 Wn.2d at
236. Testimony about the defendant’s silence may be permissible for impeachment
purposes after the defendant has taken the stand. Id. at 236-37. However, the
defendant’s silence may not be used as substantive evidence of guilt when the defendant
has not testified. Id. at 236.
13 No. 40152-9-III State v. Butler
Courts distinguish between comments and mere references to the defendant’s right
to remain silent. State v. Burke, 163 Wn.2d 204, 216, 181 P.3d 1 (2008). Subtle and
brief references do not “‘naturally and necessarily’” emphasize the defendant’s
testimonial silence. Id. (quoting State v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10
(1991)). A comment, on the other hand, “occurs when used to the State’s advantage
either as substantive evidence of guilt or to suggest to the jury that the silence was an
admission of guilt.” State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).
A comment impermissibly refers to the defendant’s silence when “(1) it was the
prosecutor’s manifest intention to refer to the defendant’s silence, or (2) the remark was
of such a character that the jury would ‘naturally and necessarily’ take it to be a comment
on the defendant’s silence.” United States ex rel. Smith v. Rowe, 618 F.2d 1204, 1210
(7th Cir. 1980) (citing United States v. Edwards, 576 F.2d 1152, 1154 (5th Cir. 1978))
vacated and remanded on other grounds sub nom. Franzen v. Smith, 449 U.S. 810, 101 S.
Ct. 57, 66 L. Ed. 2d 13 (1980).
We now set forth the various comments complained of by Butler. In opening
remarks, the prosecutor told the jury:
You’ll also see evidence or hear evidence that Detective Cays multiple times tried to get Ms. Bailon to make a statement. Her car was seized. Will you talk to us about that? Will you come down to the station? She missed her appointment. Never made contact.
14 No. 40152-9-III State v. Butler
You’ll hear evidence that they went out to her apartment to contact her and she was hostile. She didn’t want to give any information. She didn’t want to say what she knew. When asked the question, did you let Austin drive your jeep? She said, who is Austin? Evidence will show that later when she’s interviewed she agrees that she’d been in a relationship since 2021.
RP at 87.
Later, the prosecutor asked Bailon what her reaction was to learning that her
friend, Lopez, had been shot. Butler objected to the question as irrelevant, and the
prosecutor answered it was relevant as to why “she would withhold information and not
help law enforcement.” RP at 998. The court sustained the objection and instructed the
jury to disregard the prosecutor’s comments.
Soon after, the deputy prosecutor asked Bailon why she would not talk to the
detective and why she would not return his phone calls. She responded that she did not
want to talk to the detective because he tried to trick her into talking with him.
Later, the prosecutor questioned Detective Cays about Bailon’s reluctance to talk
with him:
Q. . . . When somebody avoids you or doesn’t give a statement, does that tend to heighten your suspicion or decrease it in a criminal investigation? [DEFENSE COUNSEL]: Your Honor, . . .—[ER] 403. THE COURT: So on [ER] 403 I find that the probative value outweighs the prejudicial [effect]. Go ahead. A. Can you repeat the question? (The Court Reporter read back the requested testimony)
15 No. 40152-9-III State v. Butler
A. It would heighten my suspicion. Q. So when Ms. Bailon refused to talk to you, did that heighten your suspicion or decrease it regarding Mr. Butler? A. It heightened it. Q. Did you give her the opportunity to talk to you and decrease it? A. Yes.
RP at 1094-95.
Butler next focuses on an argument made by the prosecutor during closing. We
first provide the context before quoting the complained-of argument.
During closing, defense counsel argued that the State did not prove beyond a
reasonable doubt who drove the black Jeep and shot Lopez, and remarked that Bailon had
several male friends, including relatives, who may have driven the black Jeep and shot
Lopez. In response, the prosecutor argued:
That’s the problem with that argument because the one person that sat up here and knows the answer . . . and could have given it to law enforcement did not because there’s only one answer that she could have given. Austin Butler.
RP at 1264. Defense counsel objected and asserted that the argument infringed on his
client’s right to remain silent. The court overruled the objection.
The prosecutor continued:
What’s the first thing you’re going to do? You’re going to say this is who was here [at the apartment immediately after the shooting]. I had nothing to do with this. That’s what you do.
16 No. 40152-9-III State v. Butler
When somebody, as Detective Cays said, is silent in the face of somebody that should be hoping to absolve themselves from participating—
RP at 1264-65. Defense counsel objected to the prosecutor’s use of the word
“absolving,” and the court overruled the objection. RP at 1265. The prosecutor then
explained:
[Bailon] holds the keys to who was there and who had access to her car. There’s only one answer. That’s why she’s not going to give it. Mr. Butler. Because why? We talked about the bias, motive. She loves him. Remember when she [testified.] She has lots of amnesia. . . . She’s very selective in remembering. . . . Well, she remembered all those details [when defense counsel questioned her] but she can’t remember, like, who was at your [apartment] the night your car is seized by law enforcement. .... . . . And, in fact, when asked, did you let Austin drive your jeep? Well, whose [sic] Austin? She’s done everything to cover for Mr. Butler.
RP at 1264-65.
Butler argues that the above comments and argument exceed the bounds of
impeachment and amount to an improper comment on his right to remain silent. Butler
claims that a jury would naturally and necessarily take the repeated references to Bailon’s
silence 6 as a comment on his own silence.
To support his argument, Butler relies on Burke. In Burke, the defendant was
charged with rape of a child in the third degree. 163 Wn.2d at 208. The defendant
6 We note that Bailon was not “silent” about who drove her Jeep that night and stayed over at her apartment. She testified she did not remember.
17 No. 40152-9-III State v. Butler
asserted the defense that he reasonably believed the girl was 16, and, if he decided to
testify, he would testify the girl “told him she was 16, about to turn 17.” Id. If he
reasonably believed the girl was 16, this would be a defense to the charge. Id.
The State sought to undermine the defense with evidence that the defendant, prior
to his arrest, spoke to the detective but did not tell the detective about what the girl
supposedly told him. Id. In its case in chief, the State asked the detective about an
interview between the defendant and the detective. Id. The detective explained that the
defendant’s father attended the interview and, at one point, asked if his son was going to
be charged. Id. at 208-09. The detective said it was possible. Id. at 209. The father then
instructed his son not to make any further statements until the son spoke to an attorney.
Id. The detective explained that the defendant soon after terminated the interview. Id.
During cross-examination of the defendant, the prosecutor asked why he did not tell the
detective that the girl told him she was 16. Id. The prosecutor commented on this point
in closing, and the jury convicted the defendant. Id. The Burke court reversed the
conviction because the State “intentionally invited the jury to infer guilt from [the
defendant’s] termination of his interview.” Id. at 222.
In its decision, the Burke court explained that “when the defendant testifies at trial,
use of prearrest silence is limited to impeachment and may not be used as substantive
evidence of guilt.” Id. at 217. Further, “[i]n circumstances where silence is protected, a
18 No. 40152-9-III State v. Butler
mere reference to the defendant’s silence by the government is not necessarily a violation
of this principle; however, when the State invites the jury to infer guilt from the
invocation of the right of silence, [the United States and our state’s constitutional
protections against self-incrimination] are violated.” Id. For this reason, there are
different rules that apply to how the State may impeach a defendant who testifies and
how it may impeach a nondefendant who testifies. In short, constitutional protections
apply to the former but not to the latter.
Butler argues that Burke requires his conviction to be reversed. In making this
argument, he takes several quotes from Burke out of context. In Burke, the defendant
testified, so the Burke court set forth limitations on how the State could permissibly
cross-examine a defendant who testifies. As noted above, these rules do not apply to how
the State may permissibly cross-examine a nondefendant who testifies, such as Bailon.
This case bears no resemblance to Burke. There, the prosecutor impermissibly
used the defendant’s own silence as substantive evidence of the defendant’s guilt. Here,
the prosecutor used a nondefendant witness’s reluctance to talk with a detective as
substantive evidence of the defendant’s guilt. There is no constitutional right implicated
here. The Fifth Amendment protects the accused from self-incrimination. It does not
protect the accused from being incriminated by a nondefendant witness, even if the
incriminating evidence is that witness’s reluctance to speak with a detective.
19 No. 40152-9-III State v. Butler
Affirmed.
________________________________ Lawrence-Berrey, C.J.
WE CONCUR:
________________________________ Fearing, J.
________________________________ Murphy, J.