IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 73531-4-1 Respondent, V. DIVISION ONE c=4 (I) NAVARONE GREGORY RANDMEL, UNPUBLISHED OPINION cr• C:3 CD Appellant. FILED: November 14, 2016 '71 "7, r cn 1-1- rl " LEACH, J. — Navarone Randmel appeals his convictions for possessiob ofHr- c) — stolen vehicles, resisting arrest, and obstructing a law enforcement officer.fHeT:;-:
claims the trial court's inclusion of definitional terms in the "to-convict" jury
instruction added elements that the State did not prove. Also, he challenges the
admission of statements he made during a custodial interrogation and the State's
reference to his silence during that interrogation. We reject each of these
arguments.
This court recently decided that including the definition of "possession" in a
to-convict instruction did not require the State to prove any additional elements or
"false alternative means" created by adding that definition. Because Randmel did
not unequivocally invoke his right to remain silent, the Fifth Amendment did not
prohibit the officer from questioning him further. The Washington Constitution
does not provide broader protections in this context. Thus, Randmel did not invoke
his right to remain silent, and the prosecutor could reference his statements in
closing argument. No. 73531-4-1/2
We affirm Randmel's convictions. But because the trial court failed to make
an individualized inquiry into Randmel's ability to pay before imposing discretionary
legal financial obligations (LF05), we remand for resentencing.
Background
Bellingham police officers arrested Randmel after a series of car thefts in
December 2014 and January 2015. Officers testified that they twice found
Randmel behind the wheel of stolen cars and stopped him. Both times the suspect
ran away, and both times the police tracked him with a police dog but did not find
him.
The third time, the dog caught him. Officer Joel Douglas read Randmel his
Mirandal rights. Randmel acknowledged that he understood his rights and that he
was willing to talk. Randmel then told the officers that he ran away because he
was scared, that he did not know the car had been reported stolen, and that he
had gotten the car from a friend's house. Randmel was taken to a hospital for
treatment for dog bites.
Officer Jeremy Woodward went to the hospital to question Randmel.
Douglas told Woodward that Randmel had agreed to speak. Woodward then
asked Randmel about the previous car thefts. Woodward testified that he asked
Randmel to "tell me basically where he ran" in those incidents because Woodward
wanted to know if his "dog was doing his job properly." Randmel responded that
"he would rather not say."
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). -2- No. 73531-4-1/ 3
Woodward then said to Randmel, "[Mow aboutldescribe where we tracked
and you can tell me whether or not we were correct." Woodward then described
the two previous tracking incidents. Randmel told him it sounded about right and
that Woodward had a good dog. Woodward then asked if Randmel had been
hiding in a tree during the second track. Randmel again responded that "he would
rather not say but that he has been known to climb trees.'"2
Randmel testified that he did not know anything about the first two stolen
cars and had been at home sleeping both nights. He testified that he had not
stolen the third car—only taken a pair of boots out of it—and that he ran when the
police came because he had taken the boots.
The State charged Randmel with three counts of possessing a stolen
vehicle, two counts of resisting arrest, and one count of obstructing a law
enforcement officer.
The trial court held a CrR 3.5 hearing to determine the admissibility of the
statements Randmel made to Woodward at the hospital. The State asserted that
Randmel "never made an unequivocal statement asking that all questioning should
cease." Randmel's counsel did not challenge this statement. The trial court found
that Randmel made the statements after a voluntary, knowing, and intelligent
waiver of rights and admitted the statements.
2 Randmel testified that when Woodward asked about the previous incidents, Randmel thought they were discussing the night he was arrested. -3- No. 73531-4-1 / 4
The jury found Randmel guilty as charged. The trial court imposed on
Randmel over $2,000 in discretionary LF0s. It later found Randmel indigent for
purposes of pursuing an appeal. Randmel appeals.
Standard of Review
We review constitutional questions de novo.3 We also review de novo a
trial court's conclusions of law after a CrR 3.5 hearing.4
Analysis
Sufficiency of the Evidence
Randmel first contends that because the State included the definition of
"possession" in its to-convict instruction, the law of the case doctrine required the
State to prove each of the five methods of possession. Since the State did not
present evidence about two of the methods, he claims that this court must reverse
his conviction.
In State v. Tyler,5 this court rejected this argument on identical pertinent
facts. We followed the United States Supreme Court decision in Musacchio v.
United States6 that "'when a jury instruction sets forth all the elements of the
charged crime but incorrectly adds one more element, a sufficiency challenge
should be assessed against the elements of the charged crime, not against the
erroneously heightened command in the jury instruction.'"7
3State v. Castro, 141 Wn. App. 485, 490, 170 P.3d 78 (2007). 4State v. Grogan, 147 Wn. App. 511, 516, 195 P.3d 1017 (2008). 5 195 Wn. App. 385, P.3d (2016), petition for review filed, No. 93770-2 (Wash. Oct. 27, 2016). 6 U.S. , 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016). 7 Tyler, 195 Wn. App. at 395 (quoting Musacchio, 136 S. Ct. at 715).
-4- No. 73531-4-1 / 5
Tyler controls the outcome in this case. A jury unanimously convicted
Randmel of possessing a stolen vehicle, a single-means crime. The trial court's
inclusion of the definition of "possession" in the to-convict instruction did not
obligate the State to prove every method of possessing a stolen vehicle. The State
presented evidence sufficient for the jury to find that Randmel possessed a stolen
vehicle. We therefore reject Randmel's claim.
Right against Self-Incrimination
Next, Randmel asserts that the trial court violated his right against self-
incrimination under both the Fifth Amendment to the federal constitution and article
1, section 9 of the Washington Constitution. Randmel's challenge raises several
issues, which we address in turn.
First, the State asserts that Randmel waived his challenge to admission of
self-incriminating statements by failing to make this challenge at the CrR 3.5
hearing. We disagree.
In general, this court may decline to address issues a party raises for the
first time on appea1.8 But this court will consider for the first time on appeal a claim
of a "manifest error affecting a constitutional right."9 An error is "manifest" if it
resulted in "actual prejudice," meaning that it had "practical and identifiable
consequences" at trial."
8 RAP 2.5(a). 9 RAP 2.5(a)(3). 19 State v. Kalebauqh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015).
-5- No. 73531-4-1 / 6
As the error Randmel claims—violation of his right against self-
incrimination—is plainly constitutional, we need only to ask whether that error is
"manifest." We find that it is. The admission of the statements Randmel made
after responding to a question from Woodward that he "would rather not say" had
"practical and identifiable consequences." At trial, Randmel asserted an alibi
defense. The statements he made after purportedly invoking his right to remain
silent contradicted that alibi by implying his presence at the first two incidents of
car theft and the ensuing dog trackings. The State's argument that the other
evidence against Randmel was overwhelming does not persuade us. There was
a strong likelihood that Randmel's statements influenced the jury's weighing of the
evidence as to the first two counts of possessing a stolen vehicle. We conclude
that this claim is appropriate for our review.
Next, the State claims that the record is inadequate for this court to review
Randmel's self-incrimination claim. The State does not support its argument with
authority, nor does it explain what more context for Randmel's statements this
court needs to decide whether Randmel's rights were violated. And although, as
the State concedes, the trial court should have made written findings after the CrR
3.5 hearing, that error is harmless because the trial court's oral findings are
sufficient for our review."
11 CrR 3.5(c); State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998). -6- No. 73531-4-1 /7
We therefore review the merits of Randmel's Fifth Amendment claim. First,
Randmel asserts that he unequivocally invoked his right to remain silent and the
trial court therefore erred in admitting his ensuing statements. We disagree.
The state and federal constitutions protect a defendant's rights against self-
incrimination.12 Under both, the State may not use a defendant's statements made
during a custodial interrogation unless the defendant was informed of certain
rights.13 The defendant can waive those rights as long as the waiver is knowing,
voluntary, and intelligent.14 Any time after this waiver, the defendant can stop an
interrogation by invoking those rights.15 This invocation must be unequivocal.16
Under the federal constitution, officers do not need to stop questioning to clarify
equivocal or ambiguous invocations.17 An invocation is unequivocal if the
defendant makes it in an "objectively clear way,"15 or if "a 'reasonable police officer
in the circumstances' would understand it to be an assertion of the suspect's
rights."19 "This test encompasses both the plain language and the context of the
12U.S. CONST. amend. V; WASH. CONST. art. 1, § 9. 13 In re Pers. Restraint of Cross, 180 Wn.2d 664, 682, 327 P.3d 660 (2014); Miranda, 384 U.S. at 444. 14 State v. Piatnitsky, 180 Wn.2d 407, 412, 325 P.3d 167 (2014), cert. denied 135 S. Ct. 950 (2015). 15 Cross, 180 Wn.2d at 682. 16 Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S. Ct. 2250, 176 L. Ed. 2d 1098 (2010). 17 Berphuis, 560 U.S. at 375. 18 Piatnitsky, 180 Wn.2d at 412. 19 Cross, 180 Wn.2d at 682 (quoting Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)); Piatnitsky, 180 Wn.2d at 412-13. -7- No. 73531-4-1 / 8
suspect's purported invocation." 20 For the relevant context, a court looks at what
came before the invocation, not the defendant's responses to further questioning.21
Randmel concedes he initially waived his rights. But he asserts that he later
unequivocally invoked them by saying he "would rather not say" in response to two
questions that implied he was present for previous crimes. He likens his
statements to the defendants' statements in In re Personal Restraint of Cross22
and State v. Gutierrez,23 who said, respectively, "I don't want to talk about it" and
"[I] would rather not talk about it" after police advised them of their rights. The
defendant in Cross said he did not want to talk about "it" immediately after being
read his rights. He had not spoken with the police about the incident as Randmel
had. The Supreme Court found that any reasonable officer would have understood
"it" to refer to the murders.24 Likewise, in Gutierrez, the defendant said he would
rather not talk about "it" immediately after being read his rights and asked about
the drugs in front of him.25 In both cases, the defendants made their statements
immediately after being advised of their rights and before answering any other
questions.
20 Cross, 180 Wn.2d at 682-83. 21 See Smith v. Illinois, 469 U.S. 91, 92, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984); Piatnitsky, 180 Wn.2d at 418. 22 180 Wn.2d 664, 675, 327 P.3d 660 (2014). 23 50 Wn. App. 583, 586, 589, 749 P.2d 213 (1988). "[W]e draw no distinctions between the invocations of different Miranda rights ." Piatnitskv, 180 Wn.2d at 413. 24 Cross, 180 Wn.2d at 684. 25 Gutierrez, 50 Wn. App. at 586.
-8- No. 73531-4-1 / 9
Cross and Gutierrez are distinguishable. In contrast to the officers in those
cases, a reasonable officer here would not interpret Randmel's statements as
declining to answer any more questions. Randmel told Officer Douglas he was
willing to speak about the stolen vehicle. He never told either officer that he did
not want to talk about the stolen vehicles or that he wanted to stop talking
altogether; he said only that he did not want to respond to certain questions about
being tracked by dogs. To his second such demurral, he added coyly that "he has
been known to climb trees." Before these equivocal statements, he answered
questions about the vehicle he was arrested for stealing.
Thus, Randmel did not unequivocally invoke his right to remain silent. His
statements that he would "rather not say" were at best equivocal. Under the federal
constitution, an interrogating officer need not stop questioning at an equivocal
invocation of the right against self-incrimination.26 Federal constitutional law
therefore did not prohibit the trial court from admitting Randmel's statements.
Next, Randmel asserts that even if his statement that he would "rather not
say" was equivocal, article 1, section 9 of the Washington Constitution required
Woodward to stop questioning him, except to clarify his statement.27
"Whenever a claim of right is asserted under the Washington Constitution,
the first step is to determine if the asserted right is more broadly protected under
the state constitution than it is under federal constitutional law."28 Randmel asks
26 Davis, 512 U.S. at 461-62; Cross, 180 Wn.2d at 683. 27 See Davis, 512 U.S. at 461-62; Cross, 180 Wn.2d at 683. 28 State v. Earls, 116 Wn.2d 364, 374, 805 P.2d 211 (1991).
-9- No. 73531-4-1 / 10
this court to apply the six-factor analysis from State v. Gunwal1.29 He asserts this
analysis shows that article 1, section 9 of the Washington Constitution provides
broader protections than the Fifth Amendment when a suspect equivocally invokes
his right to remain silent.39
The State denies any need for this analysis. It relies on the Washington
Supreme Court's statement in State v. Earls31 that "the protection of article 1,
section 9 is coextensive with, not broader than, the protection of the Fifth
Amendment." The court in Earls declined to apply a Gunwall analysis to decide
whether, "as a matter of state law, an otherwise valid waiver of constitutional rights
is vitiated if police officers do not inform a suspect of the efforts of an unretained
attorney to contact hirn."32
Division Two of this court recently relied on the quoted language from Earls
in State v. Horton,33 when it declined to perform a Gunwall analysis. In Horton, the
court considered whether an officer should have stopped questioning and inquired
about the defendant's intent when the defendant equivocally invoked his right to
counse1.34 The defendant made an argument similar to Randmel's. He asserted
29106 Wn.2d 54, 720 P.2d 808 (1986). 39 Article 1, section 9 states, "No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense." The Fifth Amendment states, in relevant part, "No person . . . shall be compelled in any criminal case to be a witness against himself." 31 116 Wn.2d 364, 374-75, 805 P.2d 211 (1991). 32 Earls, 116 Wn.2d at 372-74. 33 195 Wn. App. 202, 216-17, P.3d (2016), petition for review filed, No. 93575-1 (Wash. Aug. 25, 2016). 34 Horton, 195 Wn. App. at 215.
-10- No. 73531-4-1 / 11
that State v. Robtoy35 required the officer to stop all questioning except to clarify
his ambiguous invocation of his right to counse1.38 Division Two observed that
"Washington courts have consistently ruled . . . that the state constitutional
protections under article 1, section 9, and the federal constitutional protections
under the Fifth Amendment are the same."37 It decided that no Gunwall analysis
was required as the issue had been decided.38
The Supreme Court's opinion in State v. Russe1139 directly contradicts the
State's position about the need for a Gunwall analysis here. As a result, we do not
find Horton or Earls determinative. Two years after Earls, the court in Russell
considered whether under article!, section 9 the trial court should have suppressed
physical evidence that was the "fruit" of a voluntary but "un-Mirandized"
statement.° The State contended, as it did in Horton and does here, that the court
did not need to do a Gunwall analysis because the Earls opinion squarely stated
that "the protection of article 1, section 9 is coextensive with, not broader than, the
Fifth Amendment."'" The Russell court rejected this argument. It observed that
35 98 Wn.2d 30, 653 P.2d 284 (1982). 36 Horton, 195 Wn. App. at 215-16. Division Two noted that this argument echoed the dissent in Earls, which the majority there rejected. 37 Horton, 195 Wn. App. at 217. 38 Horton, 195 Wn. App. at 216. The Supreme Court has explicitly acknowledged that "[a]s far as the Fifth Amendment is concerned, Davis states the law, not Robtov." State v. Radcliffe, 164 Wn.2d 900, 906, 194 P.3d 250 (2008). The court declined to address the defendant's argument that article I, section 9 affords broader protections than the Fifth Amendment because the defendant had not raised the issue below. Radcliffe, 164 Wn.2d at 907. 39 125 Wn.2d 24, 882 P.2d 747 (1994). 40 Russell, 125 Wn.2d at 56-57. 41 Russell, 125 Wn.2d at 57-58 (quoting Earls, 116 Wn.2d at 374-75).
-11- No. 73531-4-1 /12
the State quoted the language from Earls "out of context, thereby giving Earls an
overly expansive interpretation and running afoul of an important principle of
constitutional construction."42 It held instead that
[a] determination that a given state constitutional provision affords enhanced protection in a particular context does not necessarily mandate such a result in a different context. State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990). Similarly, when the court rejects an expansion of rights under a particular state constitutional provision in one context, it does not necessarily foreclose such an interpretation in another context.(43]
Thus, the court explained, its statement in Earls does not mean that article I,
section 9 of the Washington Constitution and the Fifth Amendment are coextensive
in all contexts. The court then performed a Gunwall analysis for the issue before
it.44
Accordingly, because no Washington court has performed a Gunwall
analysis to compare article 1, section 9 and the Fifth Amendment where a suspect
equivocally invoked his right to remain silent, a Gunwall analysis is necessary here.
As a result of the State's incorrect position, we do not have the benefit of its
Gunwall analysis.
The Gunwall factors are "(1) the textual language; (2) differences in the
texts; (3) constitutional history; (4) preexisting state law; (5) structural differences;
42 Russell, 125 Wn.2d at 58. 43 Russell, 125 Wn.2d at 58. 44 The court ultimately concluded "that the Gunwall factors do not support extending greater protection through Const. art. 1, § 9 than that provided by the federal constitution in th[at] context. . . . Policy considerations alone are insufficient. . . to trigger an expansive reading of Const. art. 1, § 9." Russell, 125 Wn.2d at 62. -12- No. 73531-4-1 /13
and (6) matters of particular state or local concern."45 Because the Supreme Court
has analyzed the same two provisions in other contexts, we need to analyze only
the fourth and six Gunwall factors here.46 We conclude that those factors do not
support a more expansive meaning for article 1, section 9 than the Fifth
Amendment when a suspect equivocally invokes the right to remain silent.
The context does not change our consideration of the other four factors,
which the Supreme Court addressed in Russe11.47 We address them only briefly.
The first two factors compare the text of the two provisions. Article I, section
9 states, "No person shall be compelled in any criminal case to give evidence
against himself." (Emphasis added.) The Fifth Amendment states, "[N]or shall
[any person] be compelled in any criminal case to be a witness against himself."
(Emphasis added.) Contrary to Randmel's assertions, the relationship between
these texts is well established: "this difference in language is without meaning."48
The court in Russell found that the third factor did not support an
independent interpretation either, as the court "ha[d] not been presented with any
evidence suggesting that the framers of. . . 'model' state constitutions"—on which
the Washington Constitution is based—"intended any different result than that
45Gunwall, 106 Wn.2d at 58. 46 See State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) ("Since Gunwall involved comparing the same constitutional provisions as those to be examined here, we adopt its analysis of the first, second, third and fifth factors and examine only the fourth and sixth factors as they apply to this particular case."). 47 Russell, 125 Wn.2d at 58 (citing Boland, 115 Wn.2d at 576). 48 Russell, 125 Wn.2d 60; see State v. Moore, 79 Wn.2d 51, 55-57, 483 P.2d 630 (1971); Earls, 116 Wn.2d at 376. -13- No. 73531-4-1 / 14
reached under the federal constitution."49 Randmel's sole contention here is based
on the same textual differences the Supreme Court has repeatedly rejected.
"Our consideration of th[e fifth] factor is always the same; that is that the
United States Constitution is a grant of limited power to the federal government,
while the state constitution imposes limitations on the otherwise plenary power of
the state."5° This factor thus "supports an independent state constitutional analysis
in every case."51
The fourth factor considers "[p]reviously established bodies of state law,
including statutory law."52 The court noted in Gunwall that "[s]tate law may be
responsive to concerns of its citizens long before they are addressed by analogous
constitutional claims. Preexisting law can thus help to define the scope of a
constitutional right later established."53
Randmel cites no preexisting .state law that supports broader protection
under article I, section 9. He cites neither Washington statutes nor common law
applying the Washington Constitution. He instead relies on Washington cases
interpreting the federal constitution. He correctly notes that between 1982, when
49 Russell, 125 Wn.2d at 59; see Moore, 79 Wn.2d at 55-57; Earls, 116 Wn.2d at 376. 513 State v. Foster, 135 Wn.2d 441, 458-59, 957 P.2d 712 (1998). 51 Foster, 135 Wn.2d at 458. 52 Gunwall, 106 Wn.2d at 61. 53 Gunwall, 106 Wn.2d at 61-62. For example, the Gunwall court noted Washington's "long history of extending strong protections to telephonic and other electronic communications," including a 1909 statute "which makes it a misdemeanor for anyone to wrongfully obtain knowledge of a telegraphic message" and was based on the prestatehood Code of 1881, which "extensively regulated telegraphic communications." Gunwall, 106 Wn.2d at 66. -14- No. 73531-4-1 /15
the Washington Supreme Court decided Robtoy, and 1994, when the United
States Supreme Court decided Davis v. United States,54 a suspect's equivocal
invocation of the right to counsel required officers to cease questioning except to
clarify the statement.55 Randmel is incorrect, however, that this is "preexisting
state law" that supports a broader application of article 1, section 9 than of the Fifth
Amendment. Robtoy based its holding on an extended discussion of Fifth Circuit
interpretation of the Fifth Amendment.56 Robtoy and its progeny thus interpreted
the federal constitution, not Washington's. The relatively brief existence of this
interpretation of federal constitutional law by Washington courts does not
constitute the "established bod[yJ of state law" that the court found to weigh in favor
of an expansive interpretation of the state constitutional provision in Gunwal1.57 It
is neither state law nor established.
The cases Randmel cites from other states likewise have no bearing on the
fourth Gunwall factor, which concerns this state's case law; instead, they punctuate
the lack of such jurisprudence under this state's laws.5
54 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). 55 Robtoy, 98 Wn.2d at 37. The Washington Supreme Court recognized in Radcliffe that Davis had abrogated Robtoy. Radcliffe, 164 Wn.2d at 902; see also Cross, 180 Wn.2d at 682. 56 See Robtoy, 98 Wn.2d at 38-39. 57 See Gunwall, 106 Wn.2d at 61, 66 (interpreting article 1, section 7). 58 Randmel cites Gunwall, 106 Wn.2d at 67-68, for the proposition that other states' constitutional decisions are relevant "in determining scope of protection under article 1, section 9." But Gunwall quoted Colorado and New Jersey opinions in discussing the sixth factor, matters of local interest, not in assessing this state's preexisting law. -15- No. 73531-4-1 / 16
Finally, the sixth Gunwall factor asks, "Is the subject matter local in
character, or does there appear to be a need for national uniformity?"59
Although in general "[s]tate law enforcement measures are a matter of local
concern,"69 the Russell court recognized the national character of the issue in this
case:
[T]he specific exclusionary rule here at issue is peculiarly federal in nature. It is based on a federal case [Mirandal interpreting the federal constitution. Moreover, this court has not held that Miranda (or similar) warnings are required independently under the state constitution. Thus, this case involves a national issue to a greater extent than do many other issues of criminal law.[611
This analysis applies no differently here. The sixth factor thus weighs against an
independent interpretation of article I, section 9.
We conclude that on balance Randmel shows no persuasive reason to
apply the protections of article I, section 9 more broadly than those of the Fifth
Amendment when a suspect equivocally invokes his right to remain silent. Neither
the text of the respective constitutions, state statutory law, nor judicial
interpretations of the state constitution warrants a broader application of article I,
section 9. This conclusion is in accord with the decisions of other Washington
Gunwall, 106 Wn.2d at 62. The court noted in Gunwall that "[t]he objective of national uniformity of rules regarding the availability of telephone records and the use of pen registers, important as that may be, is outweighed in this case by overwhelming state policy considerations to the contrary." Gunwall, 106 Wn.2d at 67. 69 State v. Young, 123 Wn.2d 173, 180, 867 P.2d 593 (1994). 61 Russell, 125 Wn.2d at 61-62.
-16- No. 73531-4-1/ 17
courts, which have uniformly held that article 1, section 9 does not create a broader
right against self-incrimination than does the Fifth Amendment.62
References to Silence
Woodward testified that Randmel told him he would rather not answer
questions. The State reminded the jury of that testimony in its closing argument:
When Officer Woodward questioned Mr. Randmel, Officer Woodward described the other two K-9 tracks from the first incident. Like he said, he was asking, he wanted to know if his dog was not performing correctly on the first two pursuits for some reason. Mr. Randmel says he doesn't really want to describe or talk about that. Officer Woodward says, well, can I describe to you the two K-9 tracks and, basically, you can tell me if we got close. Mr. Randmel said that sounds about right. You have a good dog. If you are talking about the tree and everything that happened on those first two pursuits.
Randmel contends that this was an improper comment on Randmel's
invocation of his right to remain silent.
"Courts are appropriately reluctant to penalize anyone for the exercise of
any constitutional right."63 Thus, a prosecutor may not intentionally invite a jury to
infer guilt from a defendant's invocation of the right to remain silent.64 Washington
courts "distinguish[ ] between comments on silence and mere reference to silence,"
however.65
As discussed above, Randmel did not invoke his right to remain silent.
Thus, the prosecutor's reference to his response to two of Woodward's questions
62See Earls, 116 Wn.2d at 374-75; Russell, 125 Wn.2d at 62; Horton, 195 Wn. App. at 217; State v. Allenby, 68 Wn. App. 657, 662, 847 P.2d 1 (1992). 63 State v. Burke, 163 Wn.2d 204, 221, 181 P.3d 1(2008). 64 Burke, 163 Wn.2d at 222. 65 Burke, 163 Wn.2d at 221.
-17- No. 73531-4-1/ 18
was not improper. In addition, Randmel did not object to the prosecutor's comment
at trial and does not identify any "practical and identifiable consequences" that the
trial court could not have cured with an instruction; he thus failed to preserve this
claim. For these reasons, we find no error in the State's references to Randmel's
demurrals.
Legal Financial Obligations
Randmel asks that even if this court affirms his conviction, it remand for the
trial court to make an individualized inquiry into his ability to pay discretionary
LFOs. The trial court assessed Randmel $450 in court costs and $1,800 in court-
appointed attorney fees. The court waived the costs of appellate review, however,
because it found Randmel indigent.
Under RCW 10.01.160(3), a trial court "shall not order a defendant to pay
costs unless the defendant is or will be able to pay them." When a trial court
imposes costs, "[t]he record must reflect that the trial court made an individualized
inquiry into the defendant's current and future ability to pay."66
As the State concedes, the trial court did not conduct the inquiry that RCW
10.01.160(3) requires before it imposed discretionary LFOs on Randmel. The
record contains no discussion about Randmel's ability to pay the $2,000 in
discretionary LFOs that the trial court imposed. We therefore remand for the trial
court to make an individualized inquiry into Randmel's current and future ability to
pay whichever discretionary LFOs the court chooses to impose.
66 State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015). -18- No. 73531-4-1 /19
Appellate Costs
Finally, Randmel asks that this court use its discretion to deny any appellate
costs the State may request as prevailing party. The trial court found Randmel
indigent but made no finding about his future ability to pay.
"The commissioner or clerk 'will' award costs to the State if the State is the
substantially prevailing party on review, 'unless the appellate court directs
otherwise in its decision terminating review."67 This court has discretion to
consider the issue of appellate costs when a party raises the issue in its brief.68
In State v. Sinclair,68 this court used its discretion to deny appellate costs to
the State where the defendant remained indigent and this court saw "no realistic
possibility," given that the defendant was 66 years old and received a 280-month
prison sentence, that he would be able to pay .appellate costs.
Here, because we are remanding for an inquiry about Randmel's future
ability to pay discretionary LF0s, we also remand for the trial court to make a
finding about his future ability to pay appellate costs. If the trial court finds that
Randmel likely has a future ability to pay these costs, it shall award them to the
State.
State v. Sinclair, 192 Wn. App. 380, 385-86, 367 P.3d 612 (quoting RAP 67 14.2), review denied, 185 Wn.2d 1034 (2016). 68 Sinclair, 192 Wn. App. at 388-90, 393. 69 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034 (2016). -19- No. 73531-4-1/ 20
Conclusion
Because the State showed that Randmel possessed stolen vehicles on
three occasions and was not required to prove every different method of
possession, sufficient evidence supports Randmel's conviction. Because the
Washington Constitution does not provide broader protections than the federal
constitution when a suspect equivocally invokes the right to remain silent, the trial
court did not err in admitting statements Randmel made to Officer Woodward. We
affirm Randmel's convictions. But because the trial court did not conduct an
individualized inquiry into Randmel's ability to pay, we remand for resentencing as
to discretionary LFOs and for a determination about appellate costs.
WE CONCUR:
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