State v. Fuller, 282 P.3d 126

Fuller was convicted of first degree felony murder and first degree premeditated murder in Tacoma, Washington.
The State argued Fuller’s postarrest partial silence was admissible as substantive evidence of guilt; Fuller did not testify.
Evidence included a Keg hat with Fuller’s DNA inside and Ahmed’s DNA on the outside, a long hair strand, and circumstantial links to the crime scene.
Testimony showed Fuller’s financial distress and prior statements about robbery for hire, with no direct evidence placing him at Masa or in Ahmed’s cab.
The trial court admitted a 404(b) propensity-motive theory based on a prior robbery plan, and the State used slides and opening/closing statements tying silence to guilt.
The court merged the two murder convictions for sentencing, and Fuller appealed on prosecutorial misconduct, 404(b) evidence, and double jeopardy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct from postarrest partial silence	Fuller: improper to use silence as guilt evidence	State: Fuller waived silence, remarks proper impeachment	Prejudicial error; reversal and new trial required
Admission of propensity evidence under ER 404(b)	Stafford robbery plan evidence shows propensity, not motive	State: evidence relevant to motive; probative value outweighs prejudice	Abuse of discretion; admission not harmless; reversal and new trial possible on remand
Double jeopardy regarding merged convictions	Constitution prohibits multiple convictions for same offense	Trial court merged counts; Turner/Womac standards apply	No double jeopardy violation given merger; however, reversal on other grounds requires new proceedings

State v. Boehning, 127 Wn. App. 511 (Wash. Ct. App. 2005) (prosecutorial misconduct and standard of review in commentary)
State v. Easter, 130 Wn.2d 228 (Wash. 1996) (constitutional harmless error standard for postarrest silence)
State v. Slone, 133 Wn. App. 120 (Wash. Ct. App. 2006) (postarrest partial silence cannot be used as substantive guilt evidence)
Curtiss v. State, 161 Wn. App. 673 (Wash. Ct. App. 2011) (puzzle-burden-of-proof analogy analyzed for improper impact)
State v. Anderson, 153 Wn. App. 417 (Wash. Ct. App. 2009) (standard for evaluating prosecutorial misconduct in closing)
State v. Johnson, 158 Wn. App. 677 (Wash. Ct. App. 2010) (puzzle analogy that minimized beyond a reasonable doubt standard)
State v. Meas, 118 Wn. App. 297 (Wash. Ct. App. 2003) (merger provisions and double jeopardy in sentencing)
State v. Turner, 169 Wn.2d 448 (Wash. 2010) (double jeopardy framework for sentencing mergers)
State v. Womac, 160 Wn.2d 643 (Wash. 2007) (double jeopardy when multiple convictions for same offense)
State v. Trujillo, 112 Wn. App. 390 (Wash. Ct. App. 2009) (allocation of judgment for alternate means of crime)
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (right to silence and preclusion of using silence as evidence)
Hurd v. Terhune, 619 F.3d 1080 (9th Cir. 2010) (partial silence after Miranda; selective silence not probative)
Easter v. Guloy, Guloy, 104 Wn.2d 412 (Wash. 1985) (constitutional harmless error and remedy standards)