IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 85768-1-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION GIOVANNI DASHAWN HERRIN,
Appellant.
BIRK, J. — Giovanni Herrin appeals his conviction, arguing (1) the trial court
abused its discretion when it declined to dismiss his murder charge due to
cumulative governmental misconduct, (2) the trial court erred by not excluding
certain witnesses and evidence as a lesser available remedy, (3) the State
impermissibly commented on his right to prearrest silence, (4) the trial court erred
in admitting evidence of flight to show consciousness of guilt, (5) cumulative error,
and (6) the community custody condition requiring Herrin to remain within
geographic boundaries was unconstitutionally vague. Finding no error, we affirm.
I
The State charged Herrin by information with murder in the first degree of
Karyme Barreto-Sabalza, felony murder with the predicate offense of robbery in
the first degree, unlawful possession of a firearm in the first degree,1 and escape
1In a bifurcated bench trial, the trial court acquitted Herrin of unlawful possession of a firearm in the first degree. No. 85768-1-I/2
in the second degree.2 After two mistrials—which will be discussed below—the
following testimony was elicited at Herrin’s third trial.
Josefina Castello testified that on June 16, 2018 she watched a male and
female walk into the wooded area of Salt Air Vista Park. Castello testified that after
about 30 seconds, she heard a loud boom that she thought was a gunshot, walked
out of her house, and saw the male walk quickly out of the woods. Castello
watched the male enter a white Nissan Altima. Elijah Maile testified that he was
playing basketball at another park when he heard two or three gunshots coming
from Salt Air Vista Park. Maile ran toward the park, and along the way saw
someone he recognized as a family friend leaving the area in a white four-door
vehicle. Maile testified that the person he saw was associated with a person he
knew as “Antonio.”
Officers were dispatched to Salt Air Vista Park to conduct a welfare check.
An individual had called and reported a woman lying in the woods unconscious
with something covering her face. Upon arrival, officers saw a woman lying on the
ground with a blindfold over her eyes, blood along her face and head, with an
“obvious injury” by her left ear. The woman was declared dead at the scene after
rescue efforts failed. The medical examiner opined the cause of death was a
gunshot wound to the side of the head.
Kent Police Detective Daniel Yagi testified he began searching for a white
Nissan in the area, and memorized the license plate number of a Nissan Altima
2 The escape charge was severed from the other two charges. Herrin pleaded guilty to escape in the second degree.
2 No. 85768-1-I/3
that he observed. Yagi testified he investigated “Antonio” and learned that Antonio
and Herrin were brothers. Detective Yagi further discovered that Herrin was
associated with Barreto-Sabalza. Detectives ran the license plate of the Nissan
and learned that it was registered to the Barreto family, and Herrin was associated
with the vehicle. Officers pulled up Barreto-Sabalza’s department of licensing
photo and, after confirming with her family, determined she was the victim found
in the woods.
The day after the murder, Alicia Perez met with Herrin to discuss the
murder. Herrin told Perez that Barreto-Sabalza’s family told him that someone
took Barreto-Sabalza to the woods, blindfolded her, and shot her in the head.
Herrin also told Perez that Barreto-Sabalza’s car was missing and that the police
did not find photo identification, a wallet, or a phone on her. The police had not
disseminated that information to the public.
Kent Police Detective Lovisa Dvorak testified that three days after the
murder she received information that Barreto-Sabalza’s Nissan Altima was located
at a residence in South Seattle. The detective subsequently received word that
the vehicle was driving away from that residence, so she and another detective
began to pursue the vehicle. The detectives performed a pursuit intervention
technique to stop the vehicle and arrested the driver, who was identified as Herrin.
Police transported Herrin to the station for a recorded interview in which
Herrin provided inconsistent accounts for how the murder occurred. In the first
account, Herrin accused Montae Rainwater of murdering Barreto-Sabalza, and
claimed he was not present. In the second account, Herrin stated Rainwater
3 No. 85768-1-I/4
murdered Barreto-Sabalza while Herrin was present. After a break, Herrin
provided a third statement in which he said his younger brother Antonio killed
Barreto-Sabalza.
Based on Herrin’s statements, Detective Dvorak interviewed Rainwater.
The detective also interviewed Rainwater’s girlfriend, Jasmyn Dickerson, and her
mother, Karen Dickerson. Both Karen3 and Jasmyn testified that on June 16, 2018
they attended a barbecue with Rainwater in Tacoma from approximately 1:00 p.m.
until approximately 8:30 to 9:30 p.m. Karen drove to the party in her vehicle. Karen
testified that to her knowledge, Rainwater did not leave the party, which Jasmyn
corroborated.
The jury convicted Herrin of murder in the first degree. The trial court
sentenced Herrin to 37 years in prison, and 36 months of community custody upon
release. The sentence on one of Herrin’s convictions included a term of
community custody. In “Appendix H” to the judgment and sentence, the court
ordered that Herrin comply with eight community custody conditions, including that
Herrin “[r]emain within geographic boundaries, as set forth in writing by the
Department of Corrections Officer or as set forth with [Stay Out of Drug Area]
order.” Herrin appeals.
II
Herrin argues the trial court abused its discretion in denying his CrR 8.3(b)
motion to dismiss because of cumulative governmental misconduct. We conclude
3 For clarity, we use first names to refer to Karen and Jasmyn Dickerson. We do not intend disrespect.
4 No. 85768-1-I/5
that the trial court acted within its discretion in denying Herrin’s motion because he
has not established actual prejudice.
We review a trial court’s decision on a motion to dismiss under CrR 8.3(b)
for abuse of discretion. State v. Koeller, 15 Wn. App. 2d 245, 251, 477 P.3d 61
(2020). A court abuses its discretion where its decision is manifestly
unreasonable, or rests on untenable grounds or was made for untenable reasons.
Id. CrR 8.3(b) provides that a “court, in the furtherance of justice, after notice and
hearing, may dismiss any criminal prosecution due to arbitrary action or
governmental misconduct when there has been prejudice to the rights of the
accused which materially affect the accused’s right to a fair trial.” Thus, a movant
must show by a preponderance of the evidence (1) arbitrary action or misconduct
by the government, and (2) prejudice affecting the movant’s right to a fair trial.
Koeller, 15 Wn. App. 2d at 251; State v. Kone, 165 Wn. App. 420, 432-33, 266
P.3d 916 (2011). Dismissal under CrR 8.3(b) is an “extraordinary remedy” and
should be granted “only as a last resort.” State v. Brooks, 149 Wn. App. 373, 384,
203 P.3d 397 (2009). Dismissal is available “only when there has been prejudice
to the rights of the accused which materially affected the rights of the accused to
a fair trial and that prejudice cannot be remedied by granting a new trial.” State v.
Baker, 78 Wn.2d 327, 332-33, 474 P.2d 254 (1970).4
4 Citing State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997), Herrin
argues that governmental misconduct in the form of discovery and other delays impermissibly forced him to choose between his right to a speedy trial and his right effective assistance of counsel. Herrin’s argument is flawed because he bases his prejudice in the delays he says resulted from the State’s serial disclosures, but relies on case law almost predating 2003 amendments to CrR 3.3 that, subsequent decisions have held, foreclose time-to-trial arguments as a basis for dismissal
5 No. 85768-1-I/6
A
In Herrin’s first trial, Maria Nuñao Gallegos testified that she lives just down
the street from the park. On the day of the murder she saw a man in a white Nissan
drive by her. The State asked her to describe the individual, and Nuñao Gallegos
responded, “He was white-skinned. Having this person in front of me makes me
feel nervous.” Herrin moved to strike the response, and the trial court instructed
the jury to disregard the statement. Outside the presence of the jury, Herrin moved
for a mistrial, which the trial court denied.
On the third day of trial, Detective Gerald Gee testified about Herrin’s police
interrogation. The State admitted the audio recording of Herrin’s interrogation, and
discovered the recording was improperly redacted, allowing the jury to hear Herrin
say that he had been “doing robberies” since he was nine years old. Herrin filed a
second motion for a mistrial, which the trial court granted because “[a] redaction
that the court deem[ed] was prejudicial was missed in the audio statement of the
defendant.”
During Herrin’s second trial, the State disclosed that Maile had made some
disclosures to the State in the presence of Detective Dvorak about the
untruthfulness of his prior statements. The trial court granted Herrin’s request to
interview Maile after the court was in recess for the day, and ruled that Maile’s
under CrR 8.3(b). With regard to time to trial, Herrin was required to show a violation of CrR 3.3, a statute, or the state or federal constitution, none of which was shown. See CrR 3.3(h).
6 No. 85768-1-I/7
cross-examination would begin the following day. During his interview, Maile
stated that he and Detective Dvorak went through Maile’s previous statements and
the detective identified inconsistencies between the statements, told him that
certain things in the statement did not make sense, and admonished him to just
tell the truth. After the conversation with the detective, Maile stated that he went
through and disavowed additional statements from his defense interview.
Detective Dvorak stated she met with Maile, but she did not endorse the level of
discussion about his testimony that Maile had described.
Herrin filed a CrR 8.3(b) motion to dismiss “due to governmental misconduct
in irreparably tainting witness [Maile] with excessive coaching and cueing,” or
alternatively, requested the court grant a mistrial and suppress Maile’s testimony
at a subsequent trial. Herrin further argued that dismissal was warranted because
Maile was present in the hallway outside the courtroom when Herrin entered,
handcuffed and “flanked by three officers.” The trial court denied Herrin’s motion
to dismiss and suppressed Maile’s in-court identification.
At trial, Detective Dvorak testified about her communication with Rainwater,
the individual that Herrin had accused of killing Barreto-Sabalza. Detective Dvorak
testified that Rainwater told her his whereabouts on the day of the murder, and she
also spoke with his girlfriend Jasmyn, and his mentor Falshan Langston. Herrin
elicited that in a previous defense interview, Detective Dvorak had explicitly stated
that she had not interviewed Langston about Rainwater’s alibi and failed to mention
that she had verified Rainwater’s alibi with Jasmyn, which contrasted with her
direct examination testimony. Detective Dvorak testified that she did not
7 No. 85768-1-I/8
personally notify defense counsel of her interview with Langston. Herrin cross-
examined Detective Dvorak about Rainwater’s statement that he was at his
girlfriend’s aunt’s house on the day of the murder, and questioned Detective
Dvorak as to whether she spoke to the aunt or determined her address. The
detective indicated, “[W]e did have that information.” Herrin directed the detective
to her previous interview and asked, “And you did not document [the aunt’s name]
in your report, either, did you?” Detective Dvorak responded that she had
documented it, and “[i]t was in a Word doc[ument] and it wasn’t transferred over,”
another fact she had not disclosed to the defense during the interview. Detective
Dvorak testified, “I believe I explained that to you guys in this interview after—after
this initial line of questioning. I write my reports in a Word doc[ument]. My laptop
eventually essentially blew up and fried and no digital forensic experts were able
to get that.”5
Herrin also objected to Todd Plumb, a retired firefighter, being called as a
witness, asserting a discovery violation. Herrin argued that he was not provided
any medical or narrative reports from Plumb and learned the previous night that
there was a report Plumb had used to prepare for testifying. Herrin argued he had
been surprised by the information and prejudiced because it had not been provided
in a timely fashion. As a remedy, the trial court allowed Herrin to interview Plumb
before he testified.
5 Before the remainder of the detective’s cross-examination, Herrin made a
request to interview her regarding the police reports that were on the destroyed laptop, which the trial court granted.
8 No. 85768-1-I/9
Herrin filed a renewed CrR 8.3(b) motion to dismiss and argued there was
governmental misconduct by Detective Dvorak for failing to document or disclose
the discovery of missing files, and misconduct by the State for failing to disclose
that information to the defense. Herrin contended he was prejudiced because he
was led to believe he did not need to interview certain witnesses, there was contact
information he did not obtain, and he was surprised by Detective Dvorak’s
testimony that she interviewed Langston as an alibi witness for Rainwater. The
trial court denied the motion to dismiss and instructed the jury that it should
disregard all reference to incomplete or lost police reports and any investigation
documented, and should not give weight to any such testimony or evidence.
After the jury found Herrin guilty of murder in the first degree, Herrin moved
to dismiss based on cumulative prosecutorial misconduct, and argued that the
curative instruction was inadequate to cure the prejudice caused by the State’s
discovery violations. The trial court denied a mistrial and denied the motion to
dismiss. But the trial court reconsidered its ruling and held another hearing on
Herrin’s motion to dismiss. The court ruled it was not dismissing the charge
because “exculpatory evidence was not withheld in this case and prosecutorial
misconduct and prosecutorial error does not make it so that [Herrin] is precluded
from having a fair trial in the future.” The trial court found that Herrin was denied
information regarding the scope of Detective Dvorak’s investigation into
Rainwater’s alibi witnesses, which was critical to the defense case, and the court’s
instruction to the jury to disregard part of the detective’s testimony was insufficient
to cure the prejudice. The trial court further found that the State’s failure to provide
9 No. 85768-1-I/10
Herrin with Plumb’s testimony until 15 minutes before he testified substantially
prejudiced Herrin’s preparation for trial. Thus, the trial court granted Herrin’s
motion for a mistrial.
Before the third trial, the court held an omnibus hearing. Herrin objected to
the new witnesses and discovery that the State had provided since the trial date
had been reset. The trial court excluded certain witnesses and evidence and
reserved ruling on other evidence, including Karen and Jasmyn’s testimony, as
well as photos from Jasmyn that supported Rainwater’s alibi.
At a hearing on the parties’ supplemental motions in limine, Herrin re-raised
the issues that had been reserved at the omnibus hearing. Herrin argued Karen’s
testimony should be excluded because he was concerned that her testimony would
not be based on her own recollection, but instead would be influenced by Jasmyn
and the State. Herrin argued that during the defense interview, Karen had texted
Jasmyn about the key issue of what date the barbecue had taken place and the
State had separately corrected Karen about the date. The trial court denied the
motion and found that Karen’s testimony was not irreparably tainted and could be
explored during cross-examination. Herrin, while acknowledging he had
previously interviewed her, also moved to exclude Jasmyn’s testimony because
the State did not previously list her as a witness and moved to exclude the
photographs she provided of herself and Rainwater at a party at the date and time
of the homicide, as well as a video taken on the same day. Herrin argued the
photographs and the video should be excluded as late discovery. The trial court
10 No. 85768-1-I/11
denied the motion to exclude Jasmyn’s testimony, denied the motion to exclude
Jasmyn’s photographs and Snapchat6 video, and granted the motion to exclude
Jasmyn from identifying any voices from the video. As to the photographs and
video evidence, the trial court found Herrin was not prejudiced because the
defense had reasonable notice of the evidence and the timing of the disclosure did
not impact the defense’s ability to prepare for trial.
B
Herrin argues the State engaged in cumulative misconduct and points to:
(1) Nuñao Gallegos’s identification testimony, (2) the State’s improper redaction of
Herrin’s interrogation, (3) Maile’s improper coaching and staging outside the
courtroom,7 (4) Detective Dvorak’s failure to disclose her investigation of witnesses
regarding Rainwater’s alibi, and (5) the State failing to disclose Plumb’s report until
15 minutes before he testified.
Some of the errors Herrin complains of did not occur at, and thus did not
affect or prejudice, the third trial. Nuñao Gallegos did not identify Herrin in the third
trial, and similarly, the jury from the third trial did not hear Herrin admit to
committing robberies in his interrogation. Other errors were remedied with the
grant of a new trial. The importance of Maile’s testimony lay primarily in his
recognizing a person at the scene as connected to Antonio, Herrin’s brother, rather
6 Snapchat is a cell phone app similar to text messaging except that photos
and texts sent through Snapchat disappear once they are seen by the recipient and are not preserved. 7 Herrin argues the trial court “never definitively resolved which account was
credible regarding the extent of [Maile’s] coaching.” However, the trial court held that the circumstances of the alleged coaching and staging did not constitute governmental misconduct.
11 No. 85768-1-I/12
than in identifying Herrin in court years later, which the court ultimately prohibited
him from doing. Herrin argued he was unfairly surprised by Detective Dvorak’s
investigation into Rainwater’s alibi witnesses, as well as the late disclosure of
Plumb’s report. Because the court granted a mistrial, Herrin was able to review
Plumb’s report with adequate time and interview Jasmyn and Karen. Thus, the
unfair surprise was remedied. Herrin argues Detective Dvorak’s untimely
disclosures interfered with his ability to prepare for the State’s attack on his other
suspect defense. However, the State did not withhold exculpatory evidence, but
instead withheld evidence that discredited Herrin’s other suspect defense. The
remedy of a new trial permitted Herrin to meet these facts without being surprised
by them, precisely as he could have done if the State had timely disclosed them
from the start.
Herrin further argues that the State “was able to profit from the
mismanagement of its case” and “able to leverage a new trial to its advantage by
strengthening its case, thereby reaping a reward for its mismanagement.” The
State presented new evidence at the third trial, including Jasmyn’s and Karen’s
testimony, a doorbell video, which corroborated Herrin’s statement that he placed
Barreto-Sabalza’s phone into a storm drain, testimony that the iPhone recovered
from the storm drain was Barreto-Sabalza’s phone, and testimony that officers
investigated the person Maile referred to as “Antonio” and thereby discovered a
link to Herrin. Citing United States v. Chapman, 524 F.3d 1073, 1087 (9th Cir.
2008), and United States v. Bundy, 968 F.3d 1019, 1043-44 (9th Cir. 2020), Herrin
12 No. 85768-1-I/13
argues that dismissal is an appropriate remedy when any lesser available remedy
would unfairly advantage the State.
In Chapman, the Ninth Circuit found that it was not an abuse of discretion
to dismiss an indictment after finding that the prosecution engaged in “flagrant
misbehavior” that resulted in a mistrial due to violations of Giglio v. United States,
405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). 524 F.3d at 1078, 1085,
1088. The district court initially declared a mistrial, and subsequently refused to
permit a re-trial, reasoning that the defendants would suffer substantial prejudice
because the government and its witnesses would not make the same mistakes
again. Id. at 1080. The Ninth Circuit stated that the district court was in the best
position to evaluate the strength of the government’s case to gauge the prejudicial
effect of a re-trial, and concluded that “the district court considered and properly
rejected” the argument that a mistrial was an adequate sanction, “because the
mistrial remedy would advantage the government, probably allowing it to salvage
what the district court viewed as a poorly conducted prosecution.” Id. at 1087.
Thus, the Ninth Circuit held the district court’s ruling was not an abuse of discretion.
In Bundy, the government failed to produce exculpatory evidence that had
been requested by the defendants. 968 F.3d at 1026. The district court found that
“ ‘retrying the case would only advantage the government by allowing [it] to
strengthen [its] witnesses’ testimony based on the knowledge gained from the
information provided by the defense and revealed thus far,’ ” and concluded that
dismissal of the indictment was warranted. Id. at 1029 (alterations in original). In
concluding that the district court did not abuse its discretion by dismissing, the
13 No. 85768-1-I/14
Ninth Circuit, citing Chapman, highlighted the possibility of the government gaining
an advantage from already having tried the case and its ability to identify
weaknesses and attempting to correct them in a second prosecution. Id. at 1043-
45.
Both Chapman and Bundy involved the government wrongfully withholding
information helpful to the defense and arguing theories not needing to deal with
the withheld information. Chapman, 524 F.3d at 1079 (the government withheld
rap sheets, plea agreements, and other information casting doubt on the credibility
of numerous government witnesses); Bundy, 968 F.3d at 1025, 1027 (a “central
pillar” to the government’s case was that the defendants falsely stated government
snipers surrounded their ranch, and it withheld evidence that the government itself
had referred to agents observing the ranch as snipers). Had re-trials been allowed,
the government would have been allowed to better argue its case in light of the
new revelations undermining its original theories. Herrin points to information that
was withheld that helped the government’s case and was consistent with the
theory the government pursued all along. In Herrin’s case, the issue was not that
he was unfairly deprived of an opportunity to rebut the government’s theory, but
that he was unfairly surprised by nondisclosure. That failing was adequately
redressed by a new trial, with full and fair notice. Further, in both Chapman and
Bundy, the Ninth Circuit held that the district court did not abuse its discretion in
dismissing the indictment. It did not hold that dismissal was required as a matter
of law. Its analysis indicates that a trial court has the discretion to determine what
sanction is appropriate, and while usually the appropriate remedy is something
14 No. 85768-1-I/15
short of dismissal, the district courts in those cases nonetheless did not abuse their
discretion.
Given that dismissal is a “last resort” and the trial court had a chance to
remedy the surprise rather than dismiss the case outright, the trial court acted
within its discretion in denying Herrin’s CrR 8.3(b) motion to dismiss. See State v.
Wilson, 149 Wn.2d 1, 12, 65 P.3d 657 (2003) (noting that the trial court ignored
“ ‘intermediate remedial steps,’ ” such as excluding testimony, before resorting to
dismissal (quoting State v. Koerber, 85 Wn. App. 1, 4, 931 P.2d 904 (1996))).
C
Alternatively, Herrin argues the trial court erred by not suppressing Maile,
Karen, and Jasmyn’s testimony, as well as Jasmyn’s photographs, as a lesser
available remedy. We disagree.
We will not disturb the trial court’s denial of a motion to dismiss for discovery
violations unless the denial constitutes a manifest abuse of discretion. State v.
Woods, 143 Wn.2d 561, 582, 23 P.3d 1046 (2001), abrogated on other grounds
by State v. Schierman, 192 Wn.2d 577, 739 n.69, 438 P.3d 1063 (2018).
During the second trial, Herrin moved for a mistrial and moved to exclude
Maile’s testimony because of Detective Dvorak’s coaching compounded with the
suggestiveness of Maile seeing Herrin walk into the courtroom while handcuffed.
The trial court denied a mistrial, held that Maile could not provide an in-court
identification of Herrin, and the remedy for Maile’s “changing stories” would be
15 No. 85768-1-I/16
cross-examination.8 On the day of the murder, Maile told officers he saw a person
driving away from Salt Air Vista Park that he knew to be “ ‘Antonio’s friend’ ” but
whose name he did not know. As noted, this statement was probative primarily
circumstantially because Herrin in fact was Antonio’s brother, not because of
Maile’s ability to identify the person he saw years later. The statement was given
years before Detective Dvorak’s alleged coaching and Maile viewed Herrin
handcuffed and surrounded by officers. The remedy the trial court provided—
suppressing Maile’s in-court identification—was sufficient to remedy any prejudice
surrounding the coaching or the staging. Herrin fails to show that the trial court
abused its discretion in declining to exclude Maile from testifying.
Similarly, Herrin fails to show that the trial court’s decision to allow Jasmyn
and Karen to testify was an abuse of discretion. Herrin moved to suppress their
testimony due to late discovery. Herrin was unfairly surprised at the second trial
by Detective Dvorak’s investigation into Rainwater’s alibi witnesses, causing the
trial court to declare a mistrial. However, Herrin knew of Jasmyn and Karen as
witnesses, as well as the significance of their knowledge, even before the first trial.
And at the time of the third trial, Herrin knew that Detective Dvorak had followed
up on Jasmyn and Karen’s testimony. Thus, there was no longer any unfair
surprise by allowing both Karen and Jasmyn to testify and admitting Jasmyn’s
photographs and Snapchat video from the night of the murder. The trial court did
not abuse its discretion by allowing Maile’s, Jasmyn’s, and Karen’s testimony.
8 Herrin argues the trial court abused its discretion by not explicitly ruling on
the motion to suppress Maile’s testimony. However, Herrin did not re-raise the motion in the third trial. Herrin did not preserve the issue for appeal.
16 No. 85768-1-I/17
III
Herrin argues the State impermissibly commented on his exercise of his
right to prearrest silence because it used his decision not to call the police as
substantive evidence of guilt. We disagree.
During the second trial, Herrin objected to any evidence that constituted an
improper comment on Herrin’s prearrest or postarrest exercise of the right to
silence, including statements regarding his failure to call 911 when he alleged he
saw Rainwater shoot Barreto-Sabalza. The trial court admitted Herrin’s statement,
“I stayed there for like thirty seconds. I debated, was like should I call the police.”
The parties relied on this evidentiary ruling for the third trial, and the statement was
included in both the admitted audio recording of Herrin’s interrogation, as well as
the transcript of the interrogation that was published to the jury. During closing
argument of the third trial, the State discussed the differing accounts Herrin told
the police during his interrogation. While summarizing Herrin’s second account, in
which Herrin alleged that Rainwater shot Barreto-Sabalza while Herrin was
present, the State said,
Detective Gee says, “Well, did you do anything to try to stop him?” He’s like, “Well, I said, ‘Hey, man, you don’t want to do this.’ And then he just points the gun and he shoots her.” He said he hesitated about 30 seconds, and then again said the detectives, “Again ran to the car and I just went about my day.” Says he thought about calling the police. Didn’t.
The Washington state and federal constitutions provide criminal defendants
with the right against self-incrimination. State v. Easter, 130 Wn.2d 228, 235, 922
P.2d 1285 (1996). Miranda v. Arizona held pursuant to the self-incrimination
17 No. 85768-1-I/18
clause of the Fifth Amendment that “if a person in custody is to be subjected to
interrogation,” they must first be informed that they have the right to “remain silent.”
384 U.S. 436, 467-68, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Herrin was properly advised of his Miranda rights following his arrest, and
made a knowing, intelligent, and voluntary waiver of his Fifth Amendment rights.
The trial court ruled that Herrin’s statement that he debated calling the police was
admissible, and Herrin does not assign error to that ruling on appeal. In its closing
argument, the State summarized the differing accounts Herrin told to the police,
including the one in which Herrin stated he debated whether to call the police, and
discussed why Herrin’s account did not match the evidence in the case. The State
never argued that Herrin not calling the police before he was arrested suggested
his guilt, but argued only that the admissible statements he made to the police did
not fit with the evidence and were not believable. When a defendant waives the
right to remain silent, the State may draw the jury’s attention to the shortcomings
in the defendant’s story. See State v. McFarland, 73 Wn. App. 57, 64-66, 867 P.2d
660 (1994), aff’d, 127 Wn.2d 322, 899 P.2d 1251 (1995). Furthermore, the State
enjoys reasonable latitude in arguing inference from the evidence, including
inferences as to witness credibility. State v. Johnson, 40 Wn. App. 371, 381, 699
P.2d 221 (1985). We conclude the State did not comment on Herrin’s right to
silence, but used Herrin’s properly admitted statement to make a proper argument.
IV
Herrin argues the trial court abused its discretion in admitting evidence of
Herrin’s attempt to elude police to show consciousness of guilt. We disagree.
18 No. 85768-1-I/19
Before the first trial, Herrin moved to exclude reference to his flight from the
police before his arrest, and argued that unfair prejudice would outweigh any
probative value. Herrin argued he fled because he thought the pursuit was
associated with an outstanding warrant due to missing a court hearing that day for
an unrelated case. The State argued that even with that alternative reason,
another reason Herrin could have been fleeing was because he was in the victim’s
vehicle. The trial court found the prejudicial effect of the evidence did not outweigh
its probative value and ruled that the evidence was admissible.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022). A trial
court abuses its discretion when the exercise of discretion is unreasonable or
based on untenable grounds. State v. Barker, 103 Wn. App. 893, 902, 14 P.3d
863 (2000). “A trial court must not automatically allow [flight evidence] but must
first decide whether or not the proposed evidence amounts to a reasonable
inference of flight that is more than mere speculation and supports a
consciousness of guilt inference.” State v. Slater, 197 Wn.2d 660, 674, 486 P.3d
873 (2021). The probative value of flight evidence as circumstantial evidence of
guilt depends upon the degree of confidence with which four inferences can be
drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness
of guilt; (3) from consciousness of guilt concerning the crime charged; and (4) from
consciousness of guilt concerning the crime charged to actual guilt of the crime
charged. State v. Freeburg, 105 Wn. App. 492, 498, 20 P.3d 984 (2001).
19 No. 85768-1-I/20
Here, three days after Barreto-Sabalza’s murder, while driving Barreto-
Sabalza’s vehicle, Herrin led police officers on a several-minute, high speed chase,
on local streets. An officer testified to traveling an estimate of 80 miles per hour
and noted that Herrin was “pulling away from [him].” Officers were forced to use a
pursuit immobilization technique to stop the vehicle. Herrin argues the evidence
merely shows that he fled from police because of his outstanding warrant in an
unrelated matter. However, the evidence also supports the inference that Herrin
fled from police for the much more serious purpose to avoid being caught driving
Barreto-Sabalza’s vehicle. The trial court did not abuse its discretion in admitting
Herrin’s flight from the police to show consciousness of guilt.
V
Herrin argues cumulative error violated his due process right to a fair trial.
Cumulative error may warrant reversal, even if each error standing alone would
otherwise be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d
646 (2006). However, the doctrine does not apply where the errors are few and
have little or no effect on the outcome of the trial. Id. Because there were no
errors here, we reject Herrin’s cumulative error argument.
VI
Herrin argues the community custody condition requiring him to remain
within “geographic boundaries, as set forth in writing by the Department of
Corrections Officer or as set forth with [Stay Out of Drug Area] order” is
unconstitutionally vague. We recently addressed the same community custody
condition in State v. Lundstrom, __ Wn. App. 2d ___, __ P.3d __ (2025), No.
20 No. 85768-1-I/21
86537-4-I, slip op. at 1 (Wash. Ct. of Appeals July 28, 2025),
https://www.courts.wa.gov/opinions/pdf/865374.pdf, and concluded the condition
was not unconstitutionally vague. For the reasons set forth in Lundstrom, we
conclude the geographic boundaries condition is not unconstitutionally vague.
Affirmed.
WE CONCUR: