IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 73130-1-1 Respondent, DIVISION ONE V. UNPUBLISHED OPINION EVAN JOHN WILSON, .4`. "":17rri Appellant. FILED: December 12, 2016 =le cz) •••••• TI1ZJ '70 r- TRICKEY, A.C.J. — Evan Wilson appeals his criminal convictions on t.l?de rn tn
ground that the trial court failed to instruct the jury that it could not draw any
adverse inferences from his choice not to testify. The State responds that Wilson
did not properly request the instruction or object to the court's refusal to give it. We
hold that Wilson did request the instruction but did not preserve the issue by
objecting to its omission. Still, because the failure to give the requested instruction
was a manifest error affecting a constitutional right, Wilson may raise it for the first
time on appeal. Because we hold that the error was not harmless beyond a
reasonable doubt, we reverse.
FACTS
Blake Rosenthal knew Evan Wilson through a mutual friend. Rosenthal
owned a pistol, a Sig Sauer 1911. He decided to sell the pistol and posted images
of it on Facebook, offering to sell it for $1,000. Wilson told Rosenthal he knew
someone, Wiley Breon Smith, who would be interested in buying the pistol. Wilson
did not tell Rosenthal Smith's name at the time. Smith's offer was $800 plus two No. 73130-1-1 / 2
"ziplock bag[s]" of marijuana for the pisto1.1 Rosenthal agreed to $900 and one
bag of marijuana.
Rosenthal's account of the sale was that he and Wilson met with Smith in
the parking lot of the Mukilteo ferry terminal on October 6, 2014. Rosenthal and
Wilson were on foot because they had walked on the ferry from Whidbey Island to
Mukilteo. They got into Smith's car to make the sale. The three agreed to go to
Smith's apartment so that Rosenthal could show Smith how to fieldstrip the pistol.
While they were driving, Wilson was examining the pistol. He loaded the
gun and began to wave it around. When Rosenthal asked him to unload the gun,
Wilson asked him, "How does it feel to get robbed with your own gun?"2 Smith
asked Wilson what he was doing and stopped the car. Wilson told Rosenthal to
give him his cell phone. Wilson told Smith not to give Rosenthal the money.
Wilson told Rosenthal, "I know who your brothers are. If you talk to your—if you
tell anybody or tell any of your father's military people, you know, I know where
your brothers are, and I know, you know, you live in Coupeville next to that sheriff."3
Rosenthal got out of the car without the pistol, the money, or his cell phone.
Smith's account of the robbery was similar to Rosenthal's, although he did
not mention any threat Wilson had made to Rosenthal.4 After the robbery,
according to Smith, Smith wanted Wilson to "get away from [him]."5 Wilson was
1 Report of Proceedings (RP) (Jan. 27, 2015) at 21. 2 RP (Jan. 27, 2015) at 32. 3 RP (Jan. 27, 2015) at 38. There were a few differences. For example, Smith said Wilson told him the price had dropped to between $500 and $600. Smith also testified that no one told him where they were driving when they left the parking lot. 5 RP (Jan. 27, 2015) at 103.
2 No. 73130-1-1 / 3
concerned that people at the ferry terminal would be looking for him, so Smith
dropped Wilson off at a friend's house in Everett. Smith posted a picture of himself
on Facebook with Rosenthal's pistol.
Later that month, the police arrested Wilson and Smith for the robbery. The
police did not recover the pistol when they arrested Wilson and Smith. The State
charged Wilson with first degree robbery while armed with a firearm, unlawful
possession of a firearm in the second degree, possessing a stolen firearm, and
intimidating a witness.
During the trial, both Smith and Rosenthal testified for the State. In
exchange for testifying, the State gave Rosenthal immunity for any offenses
"involving: possession or delivery of a firearm under circumstances not authorized
by law, or the possession, attempted possession, or intent to deliver marijuana
under circumstances not authorized by law."6 Smith, who was prohibited from
possessing a firearm, entered a plea of guilty for possession of stolen property,
and the State agreed that it would not prosecute him for possessing or attempting
to possess Rosenthal's firearm.
The police officer who had arrested Wilson testified that, when asked about
the robbery, Wilson said he could not remember it because of drinking too much
alcohol and taking drugs. Rosenthal's mother testified that Rosenthal had called
her several times on the evening of the robbery from a stranger's phone. He
eventually reached her and told her he had been robbed. He described the robbery
to her and she told him to call the police.
6 State's Ex. 14. 3 No. 73130-1-1/4
Rosenthal testified that about a week after the robbery, Wilson sent him a
message asking, "Why are you talking shit? To kids? Are you a man or a kid? Be
a man. I'll meet up."7 Rosenthal responded, "Be a man. You put a gun to my
head. I work for my possessions whereas you have never had a job and resort to
robbing, apparently."8 Wilson never responded.
Wilson's former girlfriend testified that Wilson had never told her anything
about the robbery, although she had mentioned to Wilson that Rosenthal had told
her about the robbery.
The mutual friend testified that Rosenthal had told him about the robbery
and was going to the police. The friend could not remember Wilson's response.
Before trial, Wilson proposed that the trial court instruct the jury that it could
not draw any adverse inferences from his decision not to testify, which we will refer
to as the "no-adverse-inference instruction."8 Before Wilson rested, the court
mentioned that it would need to discuss its proposed jury instructions with the
parties later that day, telling them that it had made a potential packet, and pointing
out that an instruction allowing the jury to consider Wilson's criminal history to
impeach him would depend on whether Wilson testified. Because Wilson's earlier
felony conviction was also evidence for his unlawful possession charge, the court
noted it would need to know how the two instructions about Wilson's criminal
history would fit together.
The State said it was assuming that Wilson would not testify. The court
7 RP (Jan. 27, 2015) at 55. 8 RP (Jan. 27, 2015) at 55. 9 Clerk's Papers (CP) at 153, 172.
4 No. 73130-1-1 / 5
responded, "Okay. All right. And maybe that is a good assumption. But just
thinking ahead, if he does testify, then that's something we will have to talk about
more."1° Later that morning, Wilson's counsel told the court that Wilson would not
testify. The court noted it would "remove the two instructions that involve [Wilson]
testifying."11 No one mentioned the no-adverse-inference instruction at either time
that morning.
Before recessing for lunch, the court gave both attorneys its proposed
packet for them to review. When they reconvened, both parties agreed that they
had had an opportunity to review the packet. The court asked if Wilson had "any
exceptions to the [c]ourt's declining to give any particular instructions?"12 Wilson
objected to an instruction regarding a firearm enhancement, but did not except to
or mention the court's omission of the no-adverse-inference instruction. The court
instructed the jury without giving a no-adverse-inference instruction.
The jury found Wilson "not guilty" of intimidating a witness, but convicted
Wilson on the other charges. Wilson appeals.
ANALYSIS
Under both the United States Constitution and the Washington State
Constitution, juries may not draw any adverse inferences from a criminal
defendant's decision not to testify. Carter v. Kentucky, 450 U.S. 288, 297-98, 101
S. Ct. 1112, 67 L. Ed. 2d 705 (1981) (U.S. CONST. amend. V); State v. Pavelich,
150 Wash. 411, 419, 273 P. 182 (1928), aff d en banc, 153 Wash. 701, 279 P.
10 RP (Jan. 28, 2015) at 10-11. 11 RP (Jan. 28, 2015) at 49. 12 RP (Jan. 28, 2015) at 59.
5 No. 73130-1-1/ 6
1107(1929) (Pavelich 1) (WASH. CONST. art. I, § 9). If the defendant requests a no-
adverse-inference jury instruction, the trial court must give it. Carter, 450 U.S. at
300; Pavelich 1, 150 Wash. at 420.
Instruction Request
The State argues that there was no error because Wilson did not properly
request the no-adverse-inference instruction. Wilson responds that he requested
the instruction by including it in his proposed instructions. We agree with Wilson.
The trial court is not required to give a no-adverse-inference instruction
unless the defendant requests it. State v. Jeffries, 105 Wn.2d 398, 423, 717 P.2d
722 (1986). Parties may propose jury instructions by serving them on the opposing
party, filing a copy with the clerk, and delivering the original and a copy to the
judge. CrR 6.15(a).
Here, Wilson submitted a no-adverse-inference instruction with his packet
of proposed instructions. Wilson's instruction was the pattern jury instruction for
this issue. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 6.31 (4th ed. 2016) (WPIC). Before the trial court
instructed the jury, it gave both parties the packet of instructions it intended to use.
The court had not included the no-adverse-inference instruction. Wilson did not
call the missing instruction to trial court's attention. The trial court did not give the
no-adverse-inference instruction.13
The State argues that Wilson did not "properly request" the instruction
because he failed to take exception to the trial court leaving it out.14 The State's
13 CP at 121-50. 14 Br. of Resp't at 9, 13. 6 No. 73130-1-1/ 7
argument is not persuasive. Washington already assigns legal significance to a
party's failure to object to an instruction: the party does not preserve the error for
appeal. CrR 6.15(c); State v. Sublett, 176 Wn.2d 58, 75-76, 292 P.3d 715 (2012).
The State does not cite any authority for a distinction between proposing
the instruction and requesting it. Instead, it cites cases where the trial court
determined that there was no error because the defendant did not request the
instruction. State v. Pavelich, 153 Wash. 379, 380, 279 P. 1102 (1929) (Pavelich
II); Jeffries, 105 Wn.2d at 423; State v. Zupan, 155 Wash. 80, 97, 283 P. 671
(1929). Those cases do not apply here.
The State also argues that this court should interpret Wilson's failure to
object to the missing instruction as a "tactical decision not to request" it.15 On this
record, we do not conclude that Wilson made that tactical decision. If Wilson had
wished to withdraw his proposed instruction, he could have done so.
We conclude that Wilson properly requested the instruction by proposing it.
Issue Preservation
The State next argues that Wilson did not preserve this issue for appeal
because he failed to except to the trial court's omission of the instruction. Wilson
argues that he did not need to do anything more to preserve the issue because the
trial court had notice of the instruction and had an opportunity to include it. We
agree with the State because Wilson did not give the trial court an opportunity to
correct the error.
Once the trial court has determined which instructions it intends to give, the
15 Br. of Resp't at 10. 7 No. 73130-1-1 / 8
court must afford parties an opportunity to object to its proposed instructions
outside the presence of the jury. CrR 6.15(c). To object, a party must specify
which instruction it is objecting to and state its reasons for doing so. CrR 6.15(c).
"Any objections to the instructions, as well as the grounds for the objections, must
be put in the record to preserve review." Sublett, 176 Wn.2d at 75-76. This
procedure is necessary to "'apprise the trial judge of the nature and substance of
the objection." Walker v. State, 121 Wn.2d 214, 217, 848 P.2d 721 (1993) (quoting
Crossen v. Skagit County, 100 Wn.2d 355, 358, 669 P.2d 1244 (1983)).
Here, Wilson did not mention the no-adverse-inference instruction when
asked if he had any objections to the trial court's instructions. Relying on State v.
Gosbv, he argues that proposing the instruction was sufficient because the trial
court had an opportunity to include the instruction. 85 Wn.2d 758, 763, 539 P.2d
680 (1975). Gosby does not support Wilson's argument.
There, the defendant objected to the instruction at issue, but his reasons
were not entirely clear from the record. Gosbv, 85 Wn.2d at 762-63. The court
held that the objections were sufficient because the defendant had included
citations to Washington case law in his proposed instructions and the trial court
acknowledged, on the record, that the court understood why the defendant
objected. Gosby, 85 Wn.2d at 763.
While Wilson also cited relevant authority with his proposed instructions, his
case is distinguishable from Gosbv, because Wilson did not object at al1.16
Proposing the instruction gave the trial court an opportunity to include it, but Wilson
16 Wilson cited to WPIC 6.31 on his proposed instruction. CP at 172. 8 No. 73130-1-1 /9
never gave the trial court an opportunity to correct its error in omitting it.
Accordingly, we conclude that Wilson did not preserve the issue.
RAP 2.5(a)(3)
Wilson argues that he may raise the issue even if he did not preserve it
because it is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). We
agree.
A party may raise a "manifest error affecting a constitutional right" for the
first time on appeal. RAP 2.5(a)(3). This exception applies to the failure to object
to a jury instruction. State v. Bailey, 114 Wn.2d 340, 347, 787 P.2d 1378 (1990).
To raise an issue under RAP 2.5(a)(3), the party must show that "the error is truly
of a constitutional magnitude" and that the error is manifest. State v. Kalebauqh,
183 Wn.2d 578, 583, 355 P.3d 253 (2015). To be manifest, the error must result
in "actual prejudice" to the defendant. Kalebauqh, 183 Wn.2d at 584 (internal
quotation marks omitted) (quoting State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d
756 (2009)). The court does not require a showing of prejudice for the few errors
deemed "structural error." State v. Paumier, 176 Wn.2d 29, 36-37, 288 P.3d 1126
(2012).
As discussed above, no one disputes that refusing to give a properly
requested no-adverse-inference instruction is an error of constitutional magnitude.
The question remains whether it is a structural error, or, if it is not, whether Wilson
can show actual prejudice.
Wilson argues that, under Pavelich I, the failure to give a requested no-
adverse-inference instruction is a structural error under Washington's constitution.
9 No. 73130-1-1 / 10
In the alternative, he argues that the error is structural error under the federal
constitution. We hold that it is not structural error under either constitution but that
Wilson may raise the issue as a manifest error affecting a constitutional right.
Structural Error— Washington Constitution
Relying on Pavelich I, Wilson argues primarily that this error requires
automatic reversal under article 1, section 9 of the Washington Constitution.17 We
do not read Pavelich I to establish that remedy.
In Pavelich I, the trial court refused to give a defendant's no-adverse-
inference instruction. 150 Wash. at 413. The Washington State Supreme Court
acknowledged that its earlier decisions, requiring the instruction, relied on a statute
that was no longer valid. Pavelich 1, 150 Wash. at 419-20. As it discussed the
history of this instruction, the court quoted a decision in which it had reversed a
case on the same issue:
"It is insisted by the respondent that this was a mere oversight on the part of the court, and that it should be construed like any other principle of law applicable to criminal law, such as the presumption of innocence, reasonable doubt, and the admissibility of evidence, etc.; but, as we have before said, the prominence which the law gives to this particular instruction removes it from the column which embraces the other general propositions. This court has no right to conclude that this omission of the court was not largely instrumental in the conviction of this defendant. It would be a very natural thing for the jury to take into consideration the silence of the defendant when he was charged with this crime, and to use it most tellingly against him."
17 Wilson argues that Washington law has already settled this question, therefore he does not provide a Gunwall analysis. See State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986). Unless we have already determined that the Washington Constitution provides greater protection than the United States Constitution in a particular context, litigants must provide a Gunwall analysis if they want the court to consider "whether a parallel constitutional provision affords differing protections." City of Woodinville v. Northshore United Church of Christ, 166 Wn.2d 633, 641, 211 P.3d 406 (2009).
10 No. 73130-1-1/ 11
Pavelich I, 150 Wash. at 416 (quoting State v. Myers, 8 Wash. 177, 183-84, 35 P.
580 (1894)). The court ultimately held that, even without the specific protection of
the earlier statute, Washington's Constitution required the trial court to give this
instruction when requested by the defendant. Pavelich 1, 150 Wash. at 417-19.
The court reversed without conducting a harmless-error analysis or determining
whether the error caused prejudice under the facts of the case. Pavelich 1, 150
Wash. at 420-21.
Wilson argues that, because the court did not assess whether the error was
harmless in Pavelich 1, the court held that the error could never be harmless. We
disagree. Very few constitutional errors require automatic reversal. Arizona v.
Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991); State
v. Banks, 149 Wn.2d 38, 43, 65 P.3d 1198 (2003). There was no explicit holding
that this is an error that always requires reversal under article 1, section 9 of the
Washington Constitution. We decline to read Pavelich 1 that broadly.
Several features of Pavelich I weigh against Wilson's interpretation. First,
the Supreme Court noted that, in addition to refusing the defendant's requested
instruction, the trial court had "permitted the prosecuting officer to comment upon
the lack of contradictory evidence." Pavelich 1, 150 Wash. at 419. Although the
State did not "actually and directly allude" to the defendant's failure to testify, the
State's arguments would have reduced the likelihood that the error was harmless.
Pavelich 1, 150 Wash. at 420. Second, the court discussed Myers when it was
deciding whether the refusal to give a no-adverse-inference instruction was still
error, not when it announced the remedy. Pavelich 1, 150 Wash. at 416.
11 No. 73130-1-1 /12
Additionally, the basis in Myers for distinguishing this error from errors for which
the court would have conducted a harmlessness analysis was statutory and not
constitutional. Pavelich 1, 150 Wash. at 416 (Rem. Comp. Stat. § 2148). Finally,
we know from the court's treatment of the defendant's challenge to the sufficiency
of the evidence that, while the court did not discuss the record in detail, it had
thoroughly reviewed it. Pavelich 1, 150 Wash. at 414.
Therefore, Pavelich 1 does not require reversal when the trial court fails to
give a requested no-adverse-inference instruction. Wilson cites no other authority
for his argument that the failure to give a no-adverse-inference instruction is
structural error under article 1, section 9.
Structural Error— Federal Constitution
Wilson argues that, even if this error does not require automatic reversal
under Pavelich I, it is structural error under the Fifth Amendment. Constitutional
errors are either structural errors, which require automatic reversal, or trial errors,
which may be harmless beyond a reasonable doubt. State v. Vreen, 143 Wn.2d
923, 930, 26 P.3d 236 (2001); State v. Watt, 160 Wn.2d 626, 632-33, 160 P.3d
640 (2007). Structural errors "undermine the framework of the trial process itself,
their effect cannot be ascertained without resort to speculation, or the question of
harmlessness is irrelevant based on the nature of the right involved." Watt, 160
Wn.2d at 632. Because trial errors occur "during the presentation of the case to
the jury," the reviewing court can "quantitatively" assess their effect "in the context
of other evidence." Fulminante, 499 U.S. at 307-08. There is a presumption that
constitutional errors are not structural if "the defendant had counsel and was tried
12 No. 73130-1-1 / 13
by an impartial adjudicator." Neder v. United States, 527 U.S. 1, 8, 119 S. Ct.
1827, 144 L. Ed. 2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S.
Ct. 3101, 92 L. Ed. 2d 460 (1986)).
In State v. Montgomery, the court concluded that erroneous jury instructions
do not always require reversal. 163 Wn.2d 577, 600, 183 P.3d 267 (2008). When
certain criteria are met, the State may request that the court instruct the jury that it
may infer that a missing witness's testimony would have been unfavorable to the
defendant. Montgomery, 163 Wn.2d at 597-98. In Montgomery, the trial court
erroneously gave the missing witness instruction. 163 Wn.2d at 598-99. The court
held that, although this type of improper jury instruction could be harmless beyond
a reasonable doubt in some cases, this was not one of them. Montgomery, 163
Wn.2d at 600-01.
The absence of a no-adverse-inference instruction is a trial error. The error
occurs during the presentation of the case to the jury. The main impact of the error
is that the jury may place some evidentiary value on the defendant's decision not
to testify. While it is difficult to judge what inferences a jury may draw from not
hearing certain testimony, it is essentially the same inquiry as the one the court
made in Montgomery. Moreover, it is presumptively not structural error under
Neder because it does not impact whether the defendant had counsel or appeared
before a neutral judge.
Federal authority supports this analysis. The United States Supreme Court
has reserved decision on whether the failure to give a requested no-adverse-
inference instruction is structural error. Carter, 450 U.S. at 304; accord James v.
13 No. 73130-1-1 /14
Kentucky, 466 U.S. 341, 351, 104 S. Ct. 1830, 80 L. Ed. 2d 346 (1984). But several
circuit courts have either explicitly held that a harmless beyond a reasonable doubt
analysis is appropriate for this error or implicitly held that by conducting a
harmlessness analysis when faced with this error. See, e.g., United States v.
Brand, 80 F.3d 560, 567 (1st Cir. 1996); United States v. Whitten, 610 F.3d 168,
200 (2d Cir. 2010); Lewis v. Pinchak, 348 F.3d 355, 358-59 (3d Cir. 2003);
Richardson v. Lucas, 741 F.2d 753, 755 (5th Cir. 1984); Finney v. Rothgerber, 751
F.2d 858, 864 (6th Cir. 1985); Hunter v. Clark, 934 F.2d 856, 859-60 (7th Cir.
1991); United States v. Soto, 519 F.3d 927, 930-31 (9th Cir. 2008); Burns v. Sec'y,
Florida Dep't of Corr., 720 F.3d 1296, 1303-04 (11th Cir. 2013). It does not appear
that any federal circuit court has held that the error is structural under the Fifth
Amendment.18 The weight of this federal authority strongly suggests that a refusal
to give a requested no-adverse-inference instruction is not structural error under
the Fifth Amendment.
The Supreme Court's decisions on structural error also weigh against
finding structural error in this case. The Court has found that many substantial
constitutional violations involving jury instructions are not structural error. See,
e.o., Carella v. California, 491 U.S. 263, 266, 109 S. Ct. 2419, 105 L. Ed. 2d 218
(1989) (jury instruction containing an erroneous mandatory presumption); Pope v.
Illinois, 481 U.S. 497, 501-04, 107 S. Ct. 1918, 95 L. Ed. 2d 439 (1987) (jury
18 But, as Wilson points out, a few other states have held the error requires automatic reversal under their own constitutions or the federal constitution. See Commonwealth v. Lewis, 528 Pa. 440, 453, 598 A.2d 975 (1991) (under the Pennsylvania Constitution); People v. Ramirez, 98 III. 2d 439, 449-51, 457 N.E.2d 31 (1983) (under the Fifth Amendment). 14 No. 73130-1-1 / 15
instruction misstating an element of the offense). And the Court announced its
current "harmless beyond a reasonable doubt" standard itself in a case where the
prosecutor inappropriately commented on the defendant's refusal to testify.
Chapman v. California, 386 U.S. 18, 24-25, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
In short, we conclude that, under the Fifth Amendment, the failure to give
a requested no-adverse-inference instruction is not structural error. Therefore,
Wilson may only raise this error if he can satisfy the requirements of RAP 2.5(a)(3).
Manifest
Wilson argues that he may raise the issue under RAP 2.5(a)(3) because it
is manifest. We agree.
As noted above, a party must show that the error it complains of is manifest
in order to raise it under RAP 2.5(a)(3). To be manifest, the error must cause
"actual prejudice." Kalebaugh, 183 Wn.2d at 584 (internal quotation marks
omitted) (quoting O'Hara, 167 Wn.2d at 99). A party demonstrates actual prejudice
by showing "that the asserted error had practical and identifiable consequences.'
O'Hara, 167 Wn.2d at 99 (internal quotation marks omitted) (quoting State v.
Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)). An error is identifiable if the
trial court could have corrected the error, given what the court knew at the time.
Kalebaugh, 183 Wn.2d at 584. For example, if it is "an obvious error that the trial
court would be expected to correct even without an objection." State v. Hood,
Wn. App. , 382 P.3d 710, 714 (2016).
Here, Wilson proposed the instruction. The trial court acknowledged that it
had received and read both parties' packets of proposed instructions. The law on
15 No. 73130-1-1 / 16
this issue is clear. The trial court could easily have corrected the error. Therefore,
the error is manifest and Wilson can raise it under RAP 2.5(a)(3).
Harmless Beyond a Reasonable Doubt
Wilson argues that the failure to give a no-adverse-inference instruction
requires reversal because the court cannot say it was harmless beyond a
reasonable doubt. The State responds that the error is harmless because
overwhelming untainted evidence proves Wilson's guilt.
The State's case rested on the testimony of two people, Rosenthal and
Smith, and the people who testified about what Rosenthal and Smith had told
them. As Wilson points out, both main witnesses had motives to lie. The State
gave Rosenthal, who had agreed to accept marijuana as part of his payment for
the gun, immunity for his cooperation. Smith, who was initially arrested as Wilson's
co-conspirator, also received a deal in exchange for his testimony. The primary
corroboration of Smith's and Rosenthal's testimony was that they gave similar
accounts of the robbery to several people before trial. But there were also
indications that they had initially not been completely truthful with the police and
others.19 There was no physical evidence to corroborate their story. For example,
the State did not show that Wilson had Rosenthal's gun.
This is exactly the type of case in which a jury would expect the defendant
to explain his side of the story. The jurors may well have decided that Wilson's
19Smith and Rosenthal testified that they had met the day of the robbery, but witnesses testified that Smith and Rosenthal had met each other before the robbery. Initially, Rosenthal did not tell the police that he had agreed to accept marijuana as partial payment for the gun. Smith claimed, at trial, that the gun in the Facebook picture was not Rosenthal's until the State reminded him he could be prosecuted for perjury. 16 No. 73130-1-1/ 17
failure to testify meant that he had no explanation to give. Based on the record, it
is not possible to say beyond a reasonable doubt that this error was harmless.
The State argues that, because the jury did not convict Wilson on the
witness intimidation charge, the lack of a no-adverse-inference instruction must
have been harmless error. That argument is not convincing.
We reverse and remand for a new trial.
I V; citic 0 7 1
WE CONCUR: