FILED JUNE 27, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 33957-2-111 Respondent, ) ) v. ) ) TIMOTHY ALLEN MICHAEL BANKS, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Timothy Banks appeals his conviction for second degree assault,
primarily arguing that his prearrest silence was used against him in violation of the Fifth
Amendment. We affirm.
FACTS
An argument between Mr. Banks and Jerald Williams concerning the placement of
a shopping cart in a Fred Meyer parking lot escalated into a physical altercation. Mr.
Banks hit Mr. Williams several times and ran off. Mr. Williams was hospitalized for his
injuries. Law enforcement later arrested Mr. Banks.
At trial, Banks claimed self-defense and testified that he was attacked by
Williams. He also expressed concern about getting shot because he believed Williams
had a gun in his car. The prosecutor cross-examined by asking Mr. Banks if, under the Ii Il ' I No. 33957-2-111 State v. Banks
circumstances, it was reasonable not to report the incident or go get help if he truly was
concerned for the safety of himself and his family members. The prosecutor asked a
series of questions on cross-examination, including "did you give any consideration to
running into Fred Meyer to go get help there?" "Did you ask anyone that was standing in
the parking lot that night for help?", and "According to your testimony, Mr. Williams
assaulted you first that night. Did you ever report this?" The court overruled objections
to these questions.
While discussing the self-defense instruction in closing argument, the prosecutor
argued that a reasonable person acting in self-defense would have contacted store security
or 911, and would not have simply run away. He remarked, "Is that reasonable? IfMr.
Banks really thought that Mr. Williams had a gun [in] his car, would he really have run
away from his mother, his brother and his nephew [who remained] in the car? ... Ifhe
thinks that this person really had a gun, would he run away and not contact anyone? Not
call 911, do nothing but run away? He didn't go into the Fred Meyer's, he did not ask
help for anywhere [sic], he just ran."
ANALYSIS
Mr. Banks argues that the prosecutor erred in cross-examining him about his
failure to act and in arguing the point in closing, contending that the actions implicated
his right to remain silent. He also argues in his statement of additional grounds (SAG)
2 No. 33957-2-111 State v. Banks
that his counsel performed ineffectively and that he was deprived of a fair trial. We
address those contentions in the order listed.
The United States Constitution's Fifth Amendment, made applicable to the States
by the Fourteenth Amendment, prohibits the states from forcing a defendant to testify at
trial or commenting about the defendant's failure to speak. Griffin v. Cal., 380 U.S. 609,
612-613, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); State v. Easter, 130 Wn.2d 228, 238-
239, 922 P.2d 1285 (1996). The Washington Constitution affords the same protection as
the federal constitution. State v. Magana, 197 Wn. App. 189, 195,389 P.3d 654 (2016)
(citing Easter, 130 Wn.2d at 235; State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211
(1991 )).
As stated in Magana, "absent an express invocation of the right to silence, the
Fifth Amendment is not an obstacle to the State's introduction of a suspect's prearrest
silence as evidence of guilt." Id. Mr. Banks appears to argue that any reference to things
he did not do or did not say violates his Fifth Amendment protections. However, the
Fifth Amendment rights do not extend to noncustodial acts of silence. The prosecution's
use of noncustodial silence does not violate the Fifth Amendment unless the defendant
previously has invoked his Fifth Amendment right to silence. Salinas v. Texas, 570 U.S.
_ , 133 S. Ct. 2174, 2180, 186 L. Ed. 2d 376 (2013). The prosecutor's cross-
examination and argument all involved Mr. Banks' actions during and after the assault,
3 No. 33957-2-III State v. Banks
well before he was arrested. They involve, at most, noncustodial silence that does not
implicate Fifth Amendment protections.
Even if Mr. Banks had invoked his Fifth Amendment protection at some point, the
prosecutor's actions still were proper. The State may use a defendant's prearrest silence
to impeach his credibility if the defendant testifies at trial. Jenkins v. Anderson, 447 U.S.
231,238, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) ("Thus, impeachment follows the
defendant's own decision to cast aside his cloak of silence and advances the truth-finding
function of the criminal trial. We conclude that the Fifth Amendment is not violated by
the use of prearrest silence to impeach a criminal defendant's credibility."); State v.
Burke, 163 Wn.2d 204, 232, 181 P.3d 1 (2008).
At trial, Mr. Banks proffered testimony that he was attacked first and responded in
self-defense. Appropriate self-defense instructions were provided to the jury. The State
sought to demonstrate that Mr. Banks' actions were not those of one who had been
attacked. Those remarks did not implicate Timothy Banks' Fifth Amendment right.
There were no remarks implicating constitutionally protected silence in either cross-
examination or in closing argument.
There was no violation of Mr. Bank's Fifth Amendment right to silence.
Mr. Banks also filed a SAG alleging ineffective assistance of counsel and
violation of his right to a fair trial. In a SAG, a reviewing court will consider arguments
that are not repetitive of briefing. RAP 10.lO(a). This court will not consider a
4 No. 33957-2-111 State v. Banks
defendant's statement of additional grounds for review if it does not inform the court of
the nature and occurrence of alleged errors. RAP 10.10( c ); State v. Bluehorse, 159 Wn.
App. 410,434,248 P.3d 537 (2011). An appellate court is not required to search the
record in support of claims made in the SAG. RAP 10.IO(c).
The Sixth Amendment guaranty of counsel requires that an attorney perform to the
standards of the profession. Counsel's failure to live up to those standards will require a
new trial when the client has been prejudiced by counsel's failure. State v. McFarland,
127 Wn.2d 322, 333-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims,
courts must be highly deferential to counsel's decisions. A strategic or tactical decision
is not a basis for finding error. Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test:
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FILED JUNE 27, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 33957-2-111 Respondent, ) ) v. ) ) TIMOTHY ALLEN MICHAEL BANKS, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Timothy Banks appeals his conviction for second degree assault,
primarily arguing that his prearrest silence was used against him in violation of the Fifth
Amendment. We affirm.
FACTS
An argument between Mr. Banks and Jerald Williams concerning the placement of
a shopping cart in a Fred Meyer parking lot escalated into a physical altercation. Mr.
Banks hit Mr. Williams several times and ran off. Mr. Williams was hospitalized for his
injuries. Law enforcement later arrested Mr. Banks.
At trial, Banks claimed self-defense and testified that he was attacked by
Williams. He also expressed concern about getting shot because he believed Williams
had a gun in his car. The prosecutor cross-examined by asking Mr. Banks if, under the Ii Il ' I No. 33957-2-111 State v. Banks
circumstances, it was reasonable not to report the incident or go get help if he truly was
concerned for the safety of himself and his family members. The prosecutor asked a
series of questions on cross-examination, including "did you give any consideration to
running into Fred Meyer to go get help there?" "Did you ask anyone that was standing in
the parking lot that night for help?", and "According to your testimony, Mr. Williams
assaulted you first that night. Did you ever report this?" The court overruled objections
to these questions.
While discussing the self-defense instruction in closing argument, the prosecutor
argued that a reasonable person acting in self-defense would have contacted store security
or 911, and would not have simply run away. He remarked, "Is that reasonable? IfMr.
Banks really thought that Mr. Williams had a gun [in] his car, would he really have run
away from his mother, his brother and his nephew [who remained] in the car? ... Ifhe
thinks that this person really had a gun, would he run away and not contact anyone? Not
call 911, do nothing but run away? He didn't go into the Fred Meyer's, he did not ask
help for anywhere [sic], he just ran."
ANALYSIS
Mr. Banks argues that the prosecutor erred in cross-examining him about his
failure to act and in arguing the point in closing, contending that the actions implicated
his right to remain silent. He also argues in his statement of additional grounds (SAG)
2 No. 33957-2-111 State v. Banks
that his counsel performed ineffectively and that he was deprived of a fair trial. We
address those contentions in the order listed.
The United States Constitution's Fifth Amendment, made applicable to the States
by the Fourteenth Amendment, prohibits the states from forcing a defendant to testify at
trial or commenting about the defendant's failure to speak. Griffin v. Cal., 380 U.S. 609,
612-613, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); State v. Easter, 130 Wn.2d 228, 238-
239, 922 P.2d 1285 (1996). The Washington Constitution affords the same protection as
the federal constitution. State v. Magana, 197 Wn. App. 189, 195,389 P.3d 654 (2016)
(citing Easter, 130 Wn.2d at 235; State v. Earls, 116 Wn.2d 364, 375, 805 P.2d 211
(1991 )).
As stated in Magana, "absent an express invocation of the right to silence, the
Fifth Amendment is not an obstacle to the State's introduction of a suspect's prearrest
silence as evidence of guilt." Id. Mr. Banks appears to argue that any reference to things
he did not do or did not say violates his Fifth Amendment protections. However, the
Fifth Amendment rights do not extend to noncustodial acts of silence. The prosecution's
use of noncustodial silence does not violate the Fifth Amendment unless the defendant
previously has invoked his Fifth Amendment right to silence. Salinas v. Texas, 570 U.S.
_ , 133 S. Ct. 2174, 2180, 186 L. Ed. 2d 376 (2013). The prosecutor's cross-
examination and argument all involved Mr. Banks' actions during and after the assault,
3 No. 33957-2-III State v. Banks
well before he was arrested. They involve, at most, noncustodial silence that does not
implicate Fifth Amendment protections.
Even if Mr. Banks had invoked his Fifth Amendment protection at some point, the
prosecutor's actions still were proper. The State may use a defendant's prearrest silence
to impeach his credibility if the defendant testifies at trial. Jenkins v. Anderson, 447 U.S.
231,238, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) ("Thus, impeachment follows the
defendant's own decision to cast aside his cloak of silence and advances the truth-finding
function of the criminal trial. We conclude that the Fifth Amendment is not violated by
the use of prearrest silence to impeach a criminal defendant's credibility."); State v.
Burke, 163 Wn.2d 204, 232, 181 P.3d 1 (2008).
At trial, Mr. Banks proffered testimony that he was attacked first and responded in
self-defense. Appropriate self-defense instructions were provided to the jury. The State
sought to demonstrate that Mr. Banks' actions were not those of one who had been
attacked. Those remarks did not implicate Timothy Banks' Fifth Amendment right.
There were no remarks implicating constitutionally protected silence in either cross-
examination or in closing argument.
There was no violation of Mr. Bank's Fifth Amendment right to silence.
Mr. Banks also filed a SAG alleging ineffective assistance of counsel and
violation of his right to a fair trial. In a SAG, a reviewing court will consider arguments
that are not repetitive of briefing. RAP 10.lO(a). This court will not consider a
4 No. 33957-2-111 State v. Banks
defendant's statement of additional grounds for review if it does not inform the court of
the nature and occurrence of alleged errors. RAP 10.10( c ); State v. Bluehorse, 159 Wn.
App. 410,434,248 P.3d 537 (2011). An appellate court is not required to search the
record in support of claims made in the SAG. RAP 10.IO(c).
The Sixth Amendment guaranty of counsel requires that an attorney perform to the
standards of the profession. Counsel's failure to live up to those standards will require a
new trial when the client has been prejudiced by counsel's failure. State v. McFarland,
127 Wn.2d 322, 333-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims,
courts must be highly deferential to counsel's decisions. A strategic or tactical decision
is not a basis for finding error. Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test:
whether or not ( 1) counsel's performance failed to meet a standard of reasonableness and
(2) actual prejudice resulted from counsel's failures. Id. at 690-692. When a claim can be
disposed of on one ground, a reviewing court need not consider both Strickland prongs.
State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007
(2007).
Mr. Banks claims his defense counsel's representation fell below an objective
standard of reasonableness when she asked the court on three occasions to let her take her
glucose tablets when her blood sugar dipped too low. However, he does not show how
5 No. 33957-2-III State v. Banks
this is objectively unreasonable nor does he demonstrate the probability that the outcome
of trial was undermined. Strickland, 466 U.S. at 669.
Next, Mr. Banks claims counsel failed to question Mr. Williams about his temper.
However, the failure to ask a question on cross-examination is generally considered a
trial tactic, so Mr. Banks must establish the lack of a tactical reason for declining to raise
the question. State v. McNeal, 145 Wn.2d 352, 362-363, 37 P.3d 280 (2002). Moreover,
even a lame or poor cross-examination will seldom, if ever, constitute ineffective
assistance of counsel. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 965 P.2d 593
(1998).
Mr. Banks has not established that his counsel performed ineffectively.
The SAG also contends that the right to a fair trial was violated by ( 1) the failure
to give an instruction on the inferior degree offense of third degree assault, (2) failure to
hold a CrR 3.5 hearing, and (3) failure to provide adequate audio-visual equipment for
Jurors. <
The record reveals that these arguments are without merit. First, in light of the
claim of self-defense, there was no factual basis for the jury to consider the inferior
degree offense of third degree assault. Mr. Banks either assaulted Mr. Williams or he
was acting in self-defense; there was no evidence to support a theory of reckless, as
opposed to intentional, injury. The court also verified with both counsel there was no
need to hold a CrR 3.5 hearing. Finally, the record shows the court made adjustments in
6 No. 33957-2-111 State v. Banks
the courtroom to enable the jurors to better view the video. Neither the jury nor any party
contended that the arrangements were inadequate.
The SAG issues are without merit. Mr. Banks also requests that we waive costs
on appeal. In light of his significant past debts and the extensive restitution owed in this
case, we exercise our discretion to waive appellate costs.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Pennell, J.