Mr. Chuprinov was charged and convicted at trial of Rape of a Child in the First Degree, Second Degree, Third Degree and Incest in the First Degree, involving his half-sister. Mr. Chuprinov’s half-sister disclosed significant abuse to local law enforcement. An interrogation of Mr. Chuprinov followed, wherein he admitted to having sexual intercourse with his half-sister, but remained silent in response to many questions. During trial, the State elicited testimony from the officers about Mr. Chuprinov’s silence. In closing the State encouraged the jury to consider the reasons Mr. Chuprinov might not have wanted to answer the questions to which he remained silent. Division 1 of the WA Court of Appeals (‘Division 1’) held that such testimony and commentary was constitutional error that was not harmless as to two of the counts (Rape of Child 1 and Rape of Child 2) and a special finding that the half-sister was under the age of 14 concerning the Incest count. This is remarkable, as Mr. Chuprinov’s attorney did not object to the officer’s testimony or the prosecution’s argument during closing!
Mr. Chuprinov agreed to talk to police when detained. He said he had sex with his half-sister ten times, then later changed the number of times to four, stating the sex occurred a few months earlier. The matter proceeded to trial, and the State called the detective who interviewed Mr. Chuprinov. Several inquiries were made about Mr. Chuprinov’s reluctance to answer questions. The ‘questionable questioning’ is below:
Q: Did he confirm or would he tell you when this all started?
A: I believe he said that it was a few months, when we tried to get specific details he would only say that the last occurrence was about a month prior to that, but it had been – it had been recent.
Q: And then he wouldn’t answer further questions about that?
A: Correct.
Q: Was he asked about whether or not any of the sex was forceful with her?
A: Yes. He didn’t answer.
Q: What do you mean “he didn’t answer”?
A: He just sat quietly.
Q: How long did he sit there quietly?
A: Difficult to say. Throughout the interview there were times it was a minute or two and probably other times up to four to five minutes. But towards the end of the interview when he became increasingly quiet, then that was ultimately when we terminated the interview or just ended the interview.
Q: He kind of just stopped being willing to speak?
A: Yes.
Q: When there was yes-or-no answers, did you or Detective Jones try and follow up and get more detail?
A: Yes.
Q: Was that successful?
A: Not really.
Q: And you said the interview concluded. Tell us more about that, how it concluded?
A: Well, just at the end of the interview when we, you know, were kind of just not getting anywhere, we were asking questions and getting non answers – or I’m sorry – him just being quiet. It just got to the point where it was like I believe I said something to the effect of I’m just trying to get your side of this, but if you’re not going to talk, then we might as well just finish things up.
Q: And there was no concern expressed from him about that?
A: No.
[Emphasis added]
Defense did not object to the questioning, nor to the following argument in closing, where the State raised and emphasized Mr. Chuprinov’s reluctance to answer questions.
And as soon as law enforcement started asking him whether or not it was forceful, then he stopped talking. And you heard that it wasn’t like he was willing to share a lot of details even prior to that point. It had not been a super free-flowing conversation that occurred at the police station.
Now, in your instructions, same with what we talked about the credibility of the witness, you are allowed discuss and debate over why someone might get very tight-lipped all of a sudden with the police after he admitted having sex with her after he admitted positions, after he admitted how many times it had been going on. Was there a realization that: Maybe I’m not helping myself here by talking to these detectives, right. The detectives are allowed to share that information with you. And you are allowed to use the fact that he is the one in trouble and he is the one charged with crimes in discussing and debating why he stopped talking to law enforcement in that interview room.
You are allowed to talk about the reasons why the defendant might not have wanted to be so detailed with law enforcement. You are allowed to talk about the reasons why he didn’t want to answer questions, why there were questions that they asked him that he wouldn’t answer, and you are allowed to think about that in the context, even as Detective Sergeant Don explained, that people who are in trouble tend to minimize and want to minimize what is actually going on because then they think they’re going to be in more trouble.
[Emphasis added]
Mr. Chuprinov did not object at trial to these statements by the prosecutor.
Although Mr. Chuprinov’s attorney did not object to the State’s questioning of the detective or the States closing, Division 1 recognized the authority in State v. Holmes, 122 Wn App 438, 445 (2004) where that court held “a direct comment on silence…is always a constitutional error”, which is reviewable for the first time on appeal. Division 1 here recognized that the State may not comment on an accused’s silence when doing so is “used to the State’s advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt”. Citing State v. Lewis, 130 Wn. Zd 700,707 (1996). Division 1 went on to recognize four ways to unconstitutionally comment.
First, it is constitutional error for a police witness to testify that a defendant refused to speak to him or her. Similarly, it is constitutional error for the State to purposefully elicit testimony as to the defendant’s silence. It is constitutional error also for the State to inject the defendant’s silence into its closing argument. And, more generally, it is constitutional error for the State to rely on the defendant’s silence as substantive evidence of guilt. State v. Romero, 113 Wn. App. At 790 (internal citations omitted). These uses of a defendant’s silence are fundamentally unfair and violate due process. State v. Easter, 130 Wn.2d at 236.
Division 1 held that “the State unconstitutionally commented on Chuprinov’s silence in all four ways, holding the State linked Chuprinov’s guilt with his silence and instructed the jury it could do the same.
The State, as it should, argued Mr. Chuprinov never invoked his right to silence, and the trial judge found in a preliminary 3.5 hearing that Mr. Chuprinov knowingly waived his rights and was willing to answer questions. Division 1 held, despite this, “even when the State does use a defendant’s statements at trial, the suspect may exercise the first of silence in response to any question and the State cannot use that partial silence against him at trial.” Division 1 was clear that the trial court “did not find that Chuprinov had never invoked his right to remain silent”…but only“ initially waived his Miranda rights and willingly answered questions”. Division 1 held that such silence cannot be commented on, unlike when a defendant voluntarily speaks detectives then subsequently changes his story. (A scenario found in State v. Clark, 143 Wn. 2d 731, 765 (2001))
Division 1 held, “regardless of a prior waiver and agreement to speak to law enforcement after Miranda warning, a person may enforce the right to silence in response to any questions posed by law enforcement…no special set of words is necessary to invoke the right. In fact, an accused’s silence in the face of police questioning is quite expressive as to the person’s intent to invoke the right.
The half-sister alleged victim testified. The defense brought out inconsistencies in her statement. Constitutional error may be harmless if “untainted evidence” is “overwhelming”. The court could not make this finding as to count 1, Rape of a Child 1 (age of victim less than 12) and count 2, Rape of a Child 2 (age of victim, more than 12 but less than 14) plus the special finding of ‘less than 14’ for the Incest count.
Mr. Chuprinov was convicted of count 3, Rape of a Child 3 (age of victim more than 14, less than 16) and count 4, Incest of the First Degree, based in part on Mr. Chuprinov’s counsel conceding in his closing argument that Mr. Chuprinov admitted to intercourse in the last few months. Division 1 found any reasonable jury would find there was intercourse between Mr. Chuprinov and his half-sister when she was 14 years old, but less than 16 years. Any reasonable jury would reach the result of guilty on Counts 3 &4 regardless of the State’s error in questioning the detective about Mr. Chuprinov’s silence, and then commenting on the same in its closing.
Claims of prosecutorial misconduct were not recognized, as Mr. Chuprinov’s attorney did not object to either the State’s questioning of the detective or the State’s closing argument, particularly since the State clearly indicated in its closing that a conviction could not be based on emotion. Claims that police officers improperly expressed opinions on the half-sister’s credibility and Mr. Chuprinov’s guilt were not properly preserved at the trial court level and were not of constitutional magnitude. Claims of ineffective assistance of counsel were rejected, as Division 1 held the result of the trial would not have been different had defense counsel objected to any of the many alleged improper statements. Claims of constitutional error and insufficiency of evidence as to count 4 were flatly rejected.
The outcome of this prosecution was properly tempered by appellate challenge. However, this case is a clear example of how Defendant’s hurt themselves by not invoking their 5th Amendment right to remain silent.