State of Washington v. Timothy Allen Michael Banks
33957-2
| Wash. Ct. App. | Jun 27, 2017Background
- Altercation in a Fred Meyer parking lot: Timothy Banks struck Jerald Williams after an argument about a shopping cart; Williams was hospitalized.
- Banks was later arrested and charged with second degree assault; at trial he asserted self-defense, testifying he was attacked and feared Williams had a gun in his car.
- On cross-examination the prosecutor questioned Banks about why he did not seek help, report the assault, call 911, or enter the store after the incident; objections were overruled.
- In closing the prosecutor argued a person truly acting in self-defense would have contacted store security or 911 rather than simply running away; defense challenged these remarks as implicating Banks' right to remain silent.
- Banks appealed, arguing Fifth Amendment violation (use of prearrest silence), and in a Statement of Additional Grounds (SAG) raised ineffective assistance of counsel and several trial error claims; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of prearrest silence | Banks: cross-exam and closing comments improperly used his silence, violating Fifth Amendment | State: questions and argument concerned noncustodial conduct after the incident, not invocation of Fifth Amendment | No violation; noncustodial prearrest silence admissible and, when defendant testifies, may be used for impeachment |
| Impeachment with prearrest silence after invocation | Banks: even if noncustodial, comments impermissible if he had invoked right | State: impeachment with prearrest silence is permitted (defendant opened the door by testifying) | Impeachment allowed under Jenkins and Salinas principles; no error |
| Ineffective assistance of counsel (SAG) | Banks: counsel erred (e.g., interruptions to take glucose tablets; failure to probe witness temper) | State: tactical choices, no evidence performance was objectively unreasonable or prejudicial | Claims fail under Strickland; no showing of deficient performance or prejudice |
| Other trial errors (SAG) — instructions, CrR 3.5 hearing, AV equipment | Banks: court erred by not giving lesser-included instruction, not holding CrR 3.5, and inadequate juror viewing | State: no factual basis for lesser offense given self-defense; parties waived need for CrR 3.5 hearing; court adjusted courtroom for video | Court rejects these claims as meritless; no instructional or procedural error |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (prohibition on comment about defendant's failure to testify)
- Salinas v. Texas, 133 S. Ct. 2174 (prearrest, noncustodial silence not protected unless invoked)
- Jenkins v. Anderson, 447 U.S. 231 (use of prearrest silence to impeach defendant who testifies is permissible)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- State v. Magana, 197 Wn. App. 189 (Washington treatment of prearrest silence and invocation requirement)
- State v. Burke, 163 Wn.2d 204 (use of silence for impeachment in Washington)