Opinion Information Sheet

			

                                                                 FILED
                                                             FEB 02, 2012

                                                      In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  28671-1-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
KEIR ALBERT WALLIN,                             )
                                                )         PUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  Our Supreme Court recently held that the state may suggest that a 

defendant "tailored" his testimony based on what he heard at trial if the defendant opens 

the door to that suggestion.  State v. Martin, 171 Wn.2d 521, 536-38, 252 P.3d 872 

(2011).  And we have recently held that an inquiry that suggests that testimony was 

"tailored" is proper to explain inconsistencies and contradictions between a defendant's 

testimony and earlier statements to police.  State v. Hilton, 164 Wn. App. 81, 261 P.3d 

683 (2011). But here the State suggested that the defendant tailored his testimony based 

on nothing more than his presence at his trial.  We conclude this was improper and we 

reverse and remand for a new trial.  

No. 28671-1-III
State v. Wallin

                                            FACTS

       The pertinent factual backdrop here begins with the trial of this case.  But briefly, 

the charges stem from a July 1, 2009 traffic stop by Moses Lake police.  An officer saw a 

van passenger riding without a seatbelt.  He stopped the van and got identification from 

the passenger, Keir Wallin, and the driver, Anthony Antone.  Dispatch reported that Mr. 

Wallin was an "officer safety risk." Report of Proceedings (RP) (Nov. 4, 2009) at 32.  So 

the officer frisked Mr. Wallin and searched the front passenger area of the van.  He found 

drugs and drug paraphernalia in a wooden box and he arrested Mr. Wallin for possession

of these things.  

       The State charged Mr. Wallin with possession of cocaine, morphine, ecstacy, less 

than 40 grams of marijuana, and possession of drug paraphernalia. His case went to a 

jury trial.  Mr. Wallin testified that the wooden box belonged to his friend, Mr. Antone.  

Mr. Wallin knew about the box because the two frequently smoked marijuana together 

and Mr. Antone stored his marijuana and pipe in the wooden box.  Mr. Wallin said that 

he did not tell police that the box belonged to Mr. Antone because it was an "integrity 

loyalty issue between one friend to another." RP (Nov. 5, 2009) at 176. He also believed 

Mr. Antone would admit that the box belonged to him.  

       The prosecutor asked Mr. Wallin if having access to the other evidence in the case 

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No. 28671-1-III
State v. Wallin

gave Mr. Wallin the opportunity to tailor his testimony to the other evidence:  

       Q.     Mr. Wallin, you've had the advantage of being in the courtroom and 
              hearing all the testimony so far, correct?
       A.     Yes, I have, sir.
       Q.     You've had the chance to know ahead of time what people were 
              going to say before you took the stand?
       A.     No, not really.  Could you elaborate, please?
       Q.     Before you took the stand, you had the opportunity to hear Sergeant 
              Jones testify?
       A.     Yes.
       Q.     And to watch the video?
       A.     Yes.
       Q.     And to see the evidence that was admitted?
       A.     Yes.  Today or yesterday.
       Q.     You had the opportunity to see the police reports?
       A.     Yes, I have.

RP (Nov. 5, 2009) at 177-78.  

       The jury convicted Mr. Wallin of all charges.  Mr. Wallin appealed, arguing that 

the cross-examination violated his Washington state constitutional rights to appear and 

defend in person and to meet witnesses face to face.  He filed his appellate brief in June 

2010 and we stayed his appeal pending a decision in Martin. Martin, 171 Wn.2d 521.  

Martin was decided in May 2011 and the stay in this case was lifted in June 2011.

                                        DISCUSSION

       Mr. Wallin concedes the applicability of Martin.  The State responds that this ends 

the discussion.  Mr. Wallin's claims that his constitutional right to be present at his trial, 

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No. 28671-1-III
State v. Wallin

to confront witnesses, and testify on his own behalf are all compromised by allowing the 

State to suggest that he tailored his testimony when the record does not support such an 

inference.  We review his claim of error de novo.  State v. Robinson, 171 Wn.2d 292, 

301, 253 P.3d 84 (2011).

       Article I, section 22 of the Washington State Constitution guarantees the accused 

rights "to appear and defend in person" and "to testify in his own behalf."  Our Supreme 

Court only recently passed on whether a prosecutor's suggestion that the defendant 

"tailored" his testimony violates rights guaranteed by article I, section 22 to confront 

witnesses and to appear and defend.  In Martin, it held that such cross-examination does 

not violate a defendant's article I, section 22 rights if the defendant opens the door to that 

inquiry:

              Here Martin testified on direct examination about what time he was 
       in the parking lot where the van was found as follows:  "I would guess 
       11:30, 12:00, 12:30 at night.  From prior testimony, I know it had to be 
       before one."  VRP (Dec. 11, 2007) at 28.  In our judgment, this testimony 
       opened the door to questions on cross-examination about whether he 
       tailored his testimony to evidence presented by other witnesses.  Prohibiting 
       the kind of questioning that occurred here, where the defendant states that 
       he based his testimony, in part, on testimony of other witnesses, would 
       inhibit the jury's ability to judge credibility and thereby seek the truth.  In 
       sum, we believe that in a case such as the instant, where the credibility of 
       the defendant is key, it is fair to permit the prosecutor to ask questions that 
       will assist the finder of fact in determining whether the defendant is 
       honestly describing what happened.

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No. 28671-1-III
State v. Wallin

Martin, 171 Wn.2d at 536 (emphasis added). A five-justice majority of the court then 

concluded that Mr. Martin had opened the door to the prosecutor's suggestion that he 

tailored his testimony:

              We conclude, therefore, that the State did not violate article I, 
       section 22 by posing questions during cross-examination that were designed 
       to elicit answers indicating whether Martin tailored his testimony. 
              . . . .
              We conclude, however, that our state constitution was not violated 
       when a deputy prosecutor, in response to testimony Martin had given on 
       direct examination, asked Martin if he had tailored his testimony to 
       conform to testimony given by other witnesses.

Id. at 536, 537-38 (emphasis added).

       The court's conclusions in Martin rely on the United States Supreme Court's 

decision in Portuondo.  Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 

47 (2000).  The prosecutor made the comments at issue in Portuondo during closing 

argument:  "'unlike all the other witnesses in this case the defendant has a benefit and the 

benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the 

testimony of all the other witnesses before he testifies. . . . That gives you a big 

advantage, doesn't it.'" Id. at 64. On appeal, the defendant argued these comments 

burdened his right to testify on his own behalf and to be present at trial.  Id. at 65.  He 

attempted to analogize these rights to his right to not testify at trial -- something that is 

clearly prohibited.  Id. at 65-66.  

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No. 28671-1-III
State v. Wallin

       A majority of the United States Supreme Court rejected the analogy and concluded 

that the rights are different for two reasons.  Id.  First, prohibiting comments on a 

defendant's rights to testify and be present at trial is not rooted in history. Id. Second, 

comments on a defendant's failure to testify go toward guilt, not dishonesty.  Id. at 67-68.  

Comments on a defendant's failure to testify are prohibited when it is used as "'evidence 

of guilt.'"  Id. at 69 (quoting Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 

L. Ed. 2d 106 (1965)).  Comments on a defendant's rights to be present at trial and testify 

on his own behalf, on the other hand, touch upon the defendant's credibility as a witness.  

Id.  Witness credibility is important to the "'truth-seeking function'" of trial and a 

defendant-witness is therefore treated like any other witness.  Id. (quoting Perry v. Leeke, 

488 U.S. 272, 282, 108 S. Ct. 594, 102 L. Ed. 2d 624 (1989)). The Court ultimately held 

that the prosecutor's comments did not violate the Sixth Amendment. 

       Justice Ruth Bader-Ginsburg dissented.  She would have held that the comments 

violate the Sixth Amendment.  Id. at 76 (Ginsburg, J., dissenting).  She argued that the 

majority "transforms a defendant's presence at trial from a Sixth Amendment right into an 

automatic burden on his credibility."  Id. According to the dissent, the prosecutor's 

comments violated the Sixth Amendment because the comments were generalized 

accusations.  Id. at 77 (Ginsburg, J., dissenting).  The dissent, however, suggested that a

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No. 28671-1-III
State v. Wallin

prosecutor pointing out specific instances of tailoring would not necessarily burden a 

defendant's credibility and would support a trial's truth-seeking function.  Id. at 78 

(Ginsburg, J., dissenting). 

       Martin addressed similar issues but applied Washington state constitutional 

principles.  The State questioned Mr. Martin about what time he was at an industrial 

complex.  Martin, 171 Wn.2d at 524.  Mr. Martin said, "'I would guess 11:30, 12:00, 

12:30 at night.  From prior testimony, I know it had to be before one.'"  Id. When asked 

what time he got into a van, Mr. Martin said, "'I'm saying this time, because of prior 

testimony, that I heard, said that the shop was closed at 1:00 a.m., so it was before 1:00 

a.m.'"  Id.  The prosecutor then cross-examined Mr. Martin on his ability to tailor his 

testimony:  

       "A.    Obviously I have been sitting in that seat the whole time, yes.
       Q.     And you've also had the advantage of knowing what people were 
              going to say ahead of time, wouldn't you agree with me?
       A.     No, I didn't know what anybody was going to say ahead of time.
       Q.     You didn't get to read the police reports?
       A.     I got to read the police reports.
       Q.     And you didn't get to read witness statements?
       A.     I read witness statements, yes.
       Q.     And you weren't allowed to bring those reports and statements with 
              you to court?
       A.     I read everything involved, yes.
       Q.     And you've had what, a little over a year to concentrate on what 
              people were going to say, didn't you?
       . . . .
       A.     I've read the police reports, I've read your discovery, yes.

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No. 28671-1-III
State v. Wallin

       Q.     And you've heard all the testimony so far?
       A.     So far, yes.
       Q.     And so you knew all that before you testified?
       A.     Yes."

Id. at 525.  
       The court conducted a Gunwall1 analysis and concluded that the Washington State 

Constitution granted broader rights than the United States Constitution.  Id. at 528-29.  

Article I, section 22 then warranted an independent analysis after applying the first four 

Gunwall factors.  Id. at 533.  It then considered whether article I, section 22 prohibits a 

prosecutor from suggesting in cross-examination that a defendant tailored his testimony.  

Id. at 533-34.  The court accepted Justice Ginsburg's dissent in Portuondo as controlling.  

Id. at 535-36.  The majority reasoned that tailoring is an appropriate topic for cross-

examination because cross-examination (not closing argument) is "when the jury has the 

opportunity to determine whether the defendant is exhibiting untrustworthiness."  Id. at 

536. The court then concluded that the defendant's article I, section 22 rights had not 

been violated by the prosecutor's cross-examination.  Id.

       Justice Debra Stephens wrote for three justices who concurred in part and 

dissented in part.  Id. at 538-42 (concurring/dissenting).  They would have concluded that 

the defendant's article I, section 22 rights were violated but affirmed, nevertheless, 

       1 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).  

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No. 28671-1-III
State v. Wallin

because the evidence of guilt there was overwhelming.  Id.  These justices agreed with 

Justice Sanders' dissent.  Id. at 541 (Stephens, J., concurring/dissenting).  In a dissent, 

Justice Sanders urged that cross-examination implying tailoring "demeaned," rather than 

supported the trial's truth-seeking function.  Id. at 546-47 (Sanders, J., dissenting).  He 

urged that the suggestion of tailoring implies that "all defendants are less believable 

simply as a result of exercising [article I, section 22] rights."  Id. at 546 (Sanders, J., 

dissenting). 

       The Martin court concluded "that Justice Ginsburg's view, that suggestions of 

tailoring are appropriate during cross-examination, is compatible with the protections 

provided by article I, section 22."  Id. at 535-36.  And Mr. Martin's testimony "opened 

the door" to cross-examination that suggested tailoring.  Id. at 536.  But the court did not 

"decide whether generic accusations are prohibited under article I, section 22" because 

"the accusation of tailoring in this case was specific rather than generic." Id. at 536 n.8.  

The Martin court only decided that examination suggesting tailoring is generally 

compatible with article I, section 22.  Id.  

       Since the Martin decision, we have also held that the State's suggestions that a 

defendant tailored his testimony did not violate article I, section 22.  Hilton, 146 Wn. 

App. at 96 (citing Martin, 171 Wn.2d at 536).  There the defendant also "opened the 

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No. 28671-1-III
State v. Wallin

door" to cross-examination about tailoring during a second trial because he changed his 

alibi after sitting through his prior trial.  Id.  

       Mr. Wallin did not "open the door" to such cross-examination.  He did not testify 

that he had based any of his answers on what he learned from the evidence.  Nor was that 

a fair inference.  RP (Nov. 5, 2009) at 147-209.

       Washington case law before Martin provided that "[t]he State can take no action 

which will unnecessarily 'chill' or penalize the assertion of a constitutional right and the 

State may not draw adverse inferences from the exercise of a constitutional right."  State 

v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984) (reversing death sentence because the 

State drew an adverse inference from defendant's legal gun possession).  Rupe addressed 

article I, section 24 of this state's constitution.  Id. at 706.  In State v. Johnson, Rupe was 

applied in the Sixth Amendment context.  State v. Johnson, 80 Wn. App. 337, 341, 908 

P.2d 900 (1996), overruled by State v. Miller, 110 Wn. App. 283, 285, 40 P.2d 692

(2002).  In Johnson, the court concluded a prosecutor's closing argument infringed on a 

defendant's Sixth Amendment right because the prosecutor "did not merely argue 

inferences from the defendant's testimony, but improperly focused on the exercise of the 

constitutional right itself."  Id. at 341.  

       In State v. Smith, the court applied Johnson, and Rupe by extension, again in the

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No. 28671-1-III
State v. Wallin

Sixth Amendment context.  State v. Smith, 82 Wn. App. 327, 334-35, 917 P.2d 1108 

(1996).  There the prosecutor cross-examined the defendant on his ability to tailor his 

testimony.  During the defendant's direct examination, counsel referred to photographs of 

an apartment where the crime happened and the defendant testified that the victim had 

two to three glasses of wine.  Id. at 334.  On cross-examination, the prosecutor asked,

"'So before you decided to testify that [the victim] had two to three glasses of wine out of 

that bottle, you had a chance to see that that bottle wasn't all the way full, didn't you?'"  

Id. The prosecutor continued: "'Isn't it fair to say that after you looked at all the 

photographs in the case and you had a chance to read the discovery and see what people 

were going to say and hear what they had to testify to, it was only then that you crafted 

your story?'"  Id. The court concluded that these questions "raised an inference from 

Smith's testimony" rather than "'focus[ing] on the exercise of the constitutional right 

itself.'"  Id. at 335 (quoting Johnson, 80 Wn. App. at 341).

       Once Portuondo was decided, the court concluded that "Portuondo effectively 

overrules Johnson and Smith insofar as they state a different rule."  Miller, 110 Wn. App. 

at 285.  But "[a] later holding overrules a prior holding sub silencio when it directly 

contradicts the earlier rule of law."  Lunsford v. Saberhagen Holdings, Inc., 166 Wn.2d 

264, 280, 208 P.3d 1292 (2009).  Miller, Smith, and Portuondo all address federal 

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No. 28671-1-III
State v. Wallin

constitutional provisions.  Miller, 110 Wn. App. at 284; Smith, 82 Wn. App. at 334;

Portuondo, 529 U.S. at 66.  In Miller's context, Portuondo overruled Smith because both 

cases address the U.S. Constitutions' Sixth Amendment.  However, Miller does not 

directly contradict Smith and Johnson insofar as the reasoning of Johnson and Smith still 

make sense when state constitutional law is applied.  And it seems to us that the 

reasoning in Johnson and Smith could apply to state law.  Likewise, Martin's holding 

limited to cross-examination on specific instances of tailoring does not directly contradict 

Johnson and Smith insofar as they address "generic tailoring" -- suggestions by the State 

that the defendant tailored his testimony simply because he showed up for trial. 

       The prosecutor in Mr. Wallin's case went further than asking about inferences 

from Mr. Wallin's testimony.  The prosecutor asked him directly about "the advantage of 

being in the courtroom and hearing all of the testimony so far."  RP (Nov. 5, 2009) at 

177. The focus of this question clearly followed from Mr. Wallin's exercise of his article 

I, section 22 rights to confront witnesses face-to-face and to appear and defend himself.

Under Smith, this cross-examination would be prohibited. Smith, 82 Wn. App. at 335.

       A handful of other states have addressed the issue of tailoring.  None is completely 

on point but cases out of New Jersey, Minnesota, and Hawaii are helpful.  State v. 

Daniels, 182 N.J. 80, 99-100, 861 A.2d 808 (2004); State v. Swanson, 707 N.W.2d 645, 

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No. 28671-1-III
State v. Wallin

657 (Minn. 2006); State v. Mattson, 122 Haw. 312, 326, 226 P.3d 482 (2010).

       Courts in New Jersey, Hawaii, Colorado, Massachusetts, Vermont, and Minnesota 

have concluded that cross-examination or closing argument suggesting that testimony was 

tailored is permissible only if there is specific evidence of tailoring.  See Daniels, 182 

N.J. at 99 (explaining that a prosecutor can cross-examine a defendant on tailoring only 

when there is evidence suggesting tailoring and if the prosecutor does not reference 

defendant attending trial and hearing prior witness testimony); Mattson, 122 Haw. at 326;

Martinez v. People, 244 P.3d 135, 141-42 (Colo. 2010); Commonwealth v. Gaudette, 441 

Mass. 762, 767-68, 808 N.E.2d 798 (2004); State v. Hemingway, 148 Vt. 90, 528 A.2d 

746 (1987); Swanson, 707 N.W.2d at 657.  These cases are then consistent with the 

majority's holding in Martin.  

       In Mattson, the Hawaii Supreme Court addressed whether closing argument on 

generic tailoring violated the state constitution.  122 Haw. at 326. It relied on 

Portuondo's dissent to reason "that generic accusations of tailoring during closing 

argument that are based only on a defendant's presence throughout the trial burden the 

defendant's constitutional right to be present at trial and could discourage a defendant 

from exercising his constitutional right to testify on his own behalf."  Id. It concluded 

that the Hawaii constitutional right to confrontation would prohibit such argument but 

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No. 28671-1-III
State v. Wallin

would accommodate argument based on evidence of tailoring in the record.  Id. at 326-

27. The Hawaiian confrontation clause guarantees the right "'physically to face those 

who testify against him,'" among other rights.  Id. at 325 (quoting State v. Peseti, 101 

Haw. 172, 180, 65 P.3d 119 (2003)).  

       Other cases address the propriety of comments made during closing argument and 

are not helpful.  Martinez, 244 P.3d at 140; Hemingway, 148 Vt. 90; Gaudette, 441 Mass. 

at 767.  Those cases rely on the rule that "closing argument should be based on the 

evidence in the record and all reasonable inferences to be drawn therefrom."  Martinez, 

244 P.3d at 140; see also Hemingway, 148 Vt. at 90; Gaudette, 441 Mass. at 767. Cross-

examination on conduct probative of truthfulness need not be supported by evidence in 

the record.  ER 608(b).  So the reasoning in the closing argument cases does not directly 

apply to Mr. Wallin's complaints here on appeal.

       New Jersey and Minnesota shared the same analysis to craft a rule that the State's 

suggestion that the defendant tailored his testimony based on nothing more than his 

presence in the courtroom was improper. Daniels, 182 N.J. 80; Swanson, 707 N.W.2d

645.  Neither held that it was unconstitutional; both states accepted the U.S. Supreme 

Court's invitation to create a rule prohibiting the practice.  Daniels, 182 N.J. at 95-96;

Swanson, 707 N.W.2d at 657-58.  Both reason that a criminal defendant is not like other 

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No. 28671-1-III
State v. Wallin

witnesses because criminal defendants have constitutional rights that other witnesses do 

not have.  Daniels, 182 N.J. at 97; Swanson, 707 N.W.2d at 657-58.  Allowing a 

prosecutor to cross-examine a defendant on tailoring when there is no evidence of it uses 

the defendant's constitutional rights to hurt rather than help him.  Daniels, 182 N.J. at 98-

99; Swanson, 707 N.W.2d at 658.

       Connecticut, New York, the District of Columbia, and Missouri have all held that 

cross-examination or closing argument bringing up the defendant's ability to tailor his 

testimony is not a constitutional violation.  See State v. Alexander, 254 Conn. 290, 297,

755 A.2d 868 (2000) (explaining that a defendant cannot take the stand and not have his 

credibility impeached); People v. King, 293 A.D.2d 815, 817, 740 N.Y.S.2d 500 (2002) 

("[A] defendant has the opportunity to rebut the insinuation through further testimony or 

introduction of a prior consistent statement."); Teoume-Lessane v. United States, 931 

A.2d 478, 494-95 (D.C. App. 2007); State v. Norville, 23 S.W.3d 673, 685-86 (Mo. Ct. 

App. 2000).  These cases, however, apply the federal constitution, not a state constitution.  

So again, these cases are not helpful here.  

       Mattson (Hawaii), Daniels (New Jersey), and Swanson (Minnesota) are helpful.  

Like Washington's constitution, Hawaii's constitution protects a defendant's right to 

confront witnesses face to face.  Mattson, 122 Haw. at 325.  So, it could be said that at 

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No. 28671-1-III
State v. Wallin

least one other state has prohibited comments suggesting generic tailoring because they

infringe on a defendant's constitutional right to confront witnesses face-to-face.  

However, Mattson does not address cross-examination so its facts are not completely 

analogous.  Id.  Daniels and Swanson both address cross-examination; however, they do 

not rely on state constitutional law.  Daniels, 182 N.J. at 95-96; Swanson, 707 N.W.2d at 

657-58.  They rely on their ability to fashion a trial practice rule, which is not something 

that we could do. 

       These cases, nevertheless, help clarify that cross-examination that generically 

suggest to the jury tailoring, rather than a specific showing of tailoring, abridges a 

defendant's rights to be present at trial and testify.  Cross-examination based on a specific 

showing that the defendant tailored his testimony does not run afoul of rights guaranteed 

by state constitutions; it is questioning based upon something the defendant voluntarily 

puts into evidence. Martin, 171 Wn.2d at 536.  This seems to be the holding in Martin, 

which again was limited to specific tailoring cross-examination.

       Ultimately, Mr. Wallin's presence at his trial, the presence that prompted the 

State's inquiry, was the result of an obligation and a right.  He had the obligation to show 

up for his trial or, we assume, the judge and the prosecutor would have been very 

unhappy and may even have issued a bench warrant for his arrest.  And he had a 

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No. 28671-1-III
State v. Wallin

constitutional right under both federal and state constitutions to confront witnesses and 

participate in his own defense.  U.S. Const., amend. XI; Wash. Const., art. I, § 22.  Why 

then should he be subject to the State's suggestion -- unfounded on this record -- that he 

tailored his testimony?

       Here there is no showing that Mr. Wallin had any opportunity to "tailor" his 

testimony other than showing up for trial.  We reverse and remand for new trial.  

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________                    _______________________________
Brown, J.                                           Siddoway, J.

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