constitutional harmless error in Washington

2014Emery, 174 Wn.2d at 757 ; see State v. Warren, 165 Wn.2d 17 , 26 n.3, 195 P.3d 940 (2008) (declining to apply the constitutional harmless error analysis where the error involved counsel’s argument over the application of instructions on reasonable doubt and the burden of proof and the error could be cured with a jury instruction, and distinguishing this misconduct from that of a prosecutor violating the defendant’s right to silence); State v. Easter, 130 Wn.2d 228, 234, 242 , 922 P.2d 1285 (1996) (applying the constitutional harmless error analysis where the defendant’s right to silence had be

2014Emery, 174 Wn.2d at 757 ; see State v. Warren, 165 Wn.2d 17 , 26 n. 3, 195 P. 3d 940 ( 2008) ( declining to apply the constitutional harmless error analysis where the error involved counsel' s argument over the application of instructions on reasonable doubt and the burden of proof and the error could be cured with a jury instruction and distinguishing this misconduct from that of a prosecutor violating the defendant' s right to silence); State v. Easter, 130 Wn.2d 228, 234, 242 , 922 P. 2d 1285 ( 1996) ( applying the constitutional harmless error analysis where the defendant' s right to silen

2014Emery, 174 Wn.2d at 757 ; see State v. Warren, 165 Wn.2d 17 , 26 n.3, 195 P.3d 940 (2008) (declining to apply the constitutional harmless error analysis where the error involved counsel’s argument over the application of instructions on reasonable doubt and the burden of proof and the error could be cured with a jury instruction, and distinguishing this misconduct from that of a prosecutor violating the defendant’s right to silence); State v. Easter, 130 Wn.2d 228, 234, 242 , 922 P.2d 1285 (1996) (applying the constitutional harmless error analysis where the defendant’s right to silence had be

2014Emery, 174 Wn.2d at 757 ; see State v. Warren, 165 Wn.2d 17 , 26 n. 3, 195 P. 3d 940 ( 2008) ( declining to apply the constitutional harmless error analysis where the error involved counsel' s argument over the application of instructions on reasonable doubt and the burden of proof and the error could be cured with a jury instruction and distinguishing this misconduct from that of a prosecutor violating the defendant' s right to silence); State v. Easter, 130 Wn.2d 228, 234, 242 , 922 P. 2d 1285 ( 1996) ( applying the constitutional harmless error analysis where the defendant' s right to silen

2020See State v. Scott, 110 Wn.2d at 687 n.4 (manifest constitutional error does not warrant appellate relief when it is harmless pursuant to the constitutional harmless error test). 16 No. 81395-1-I/17 Affirmed.

2019Id. at 101 (citing State v. Mak, 105 Wn.2d 692, 745-49 , 718 P.2d 407 (1986); State v. Scott, 110 Wn.2d 682, 690-91 , 757 P.2d 492 (1988)). 8 RP (Nov. 28, 2017) at 1075 (emphasis added). 4 No. 78181-2-1/5 must still consider whether the error was harmless.9 The constitutional harmless error standard is satisfied when the State proves harmlessness beyond a reasonable doubt.1° “This stringent standard can be met if there is overwhelming evidence of the defendant’s guilt that is not tainted by the error.”11 We analyze a challenged jury instruction “in the context of the instructions as a whole.”1

2017In some implied consent DUI cases, we have applied the constitutional harmless error standard announced in Chapman v. California, 386 U.S. 18, 24 , 87 S. Ct. 824 , 17 L.

2017In some implied consent DUI cases, we have applied the constitutional harmless error standard announced in Chapman v. California, 386 U.S. 18, 24 , 87 S. Ct. 824 , 17 L.

2025See, e.g., State v. Warren, 165 Wn.2d 17, 28 , 195 P.3d 940 (2008) (improper statements that defendant did not enjoy benefit of any reasonable doubt were not prejudicial as the trial court provided a thorough curative instruction); State v. Emery, 174 Wn.2d 741, 756-57 , 278 P.3d 653 (2012) (rejecting request to apply the constitutional harmless error standard to claims that a prosecutor’s remarks concerned the presumption of their innocence and impermissibly shifted the burden of proof). 15 No. 87067-0-I/16 comparison of the “jury’s role in deciding whether the State had proved guilt beyond a

2014Emery, 174 Wn.2d at 757 ; see State v. Warren, 165 Wn.2d 17 , 26 n.3, 195 P.3d 940 (2008) (declining to apply the constitutional harmless error analysis where the error involved counsel’s argument over the application of instructions on reasonable doubt and the burden of proof and the error could be cured with a jury instruction, and distinguishing this misconduct from that of a prosecutor violating the defendant’s right to silence); State v. Easter, 130 Wn.2d 228, 234, 242 , 922 P.2d 1285 (1996) (applying the constitutional harmless error analysis where the defendant’s right to silence had be

2025See, e.g., State v. Warren, 165 Wn.2d 17, 28 , 195 P.3d 940 (2008) (improper statements that defendant did not enjoy benefit of any reasonable doubt were not prejudicial as the trial court provided a thorough curative instruction); State v. Emery, 174 Wn.2d 741, 756-57 , 278 P.3d 653 (2012) (rejecting request to apply the constitutional harmless error standard to claims that a prosecutor’s remarks concerned the presumption of their innocence and impermissibly shifted the burden of proof). 15 No. 87067-0-I/16 comparison of the “jury’s role in deciding whether the State had proved guilt beyond a

2014Emery, 174 Wn.2d at 757 ; see State v. Warren, 165 Wn.2d 17 , 26 n.3, 195 P.3d 940 (2008) (declining to apply the constitutional harmless error analysis where the error involved counsel’s argument over the application of instructions on reasonable doubt and the burden of proof and the error could be cured with a jury instruction, and distinguishing this misconduct from that of a prosecutor violating the defendant’s right to silence); State v. Easter, 130 Wn.2d 228, 234, 242 , 922 P.2d 1285 (1996) (applying the constitutional harmless error analysis where the defendant’s right to silence had be

2009Traweek, 43 Wn.

2009Traweek, 43 Wash.App. at 107 , 715 P.2d 1148 (citing In re Matter of Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970)).

2026Recently our Supreme Court clarified that when applying the constitutional harmless error standard to the admission of evidence, reviewing courts must consider “both the strength of the properly admitted 12 No. 59886-8-II evidence of guilt as well as the prejudicial impact of the erroneously admitted evidence on even the properly admitted evidence.” Id. at 345 (abrogating State v. Guloy, 104 Wn.2d 412 , 705 P.2d 1182 (1985); State v. Anderson, 171 Wn.2d 764 , 254 P.3d 815 (2011); In re Pers.

2026Recently our Supreme Court clarified that when applying the constitutional harmless error standard to the admission of evidence, reviewing courts must consider “both the strength of the properly admitted 12 No. 59886-8-II evidence of guilt as well as the prejudicial impact of the erroneously admitted evidence on even the properly admitted evidence.” Id. at 345 (abrogating State v. Guloy, 104 Wn.2d 412 , 705 P.2d 1182 (1985); State v. Anderson, 171 Wn.2d 764 , 254 P.3d 815 (2011); In re Pers.

2025App. 2d at 52 n.2 (acknowledging that a constitutional harmless error argument could have been made for the drug court’s violations of due process). “ ‘The burden of proving harmlessness is on the State and it must do so beyond a reasonable doubt.’ ” State v. Irby, 170 Wn.2d 874, 886 , 246 P.3d 796 (2011) (quoting State v. Caliguri, 99 Wn.2d 501, 509 , 664 P.2d 466 (1983)).

2021State v. Irby, 170 Wn.2d 874, 885-86 , 246 P.3d 796 (2011). 2 Mr. Anderson cites State v. Peña-Fuentes, 179 Wn.2d 808, 812 , 318 P.3d 257 (2014), which held unlawful interception of attorney-client communications is subject to a constitutional harmless error analysis.

2026State v. Gordon, 172 Wn.2d 671 , 676 & n.2, 260 P.3d 884 (2011); see O’Hara, 167 Wn.2d at 99 (“[A] harmless error analysis occurs after the court determines the error is a manifest constitutional error. … The determination of whether there is actual prejudice is a different question and involves a 13 86238-3-I/14 different analysis as compared to the determination of whether the error warrants a reversal.”).

2025Scott, 110 Wn.2d at 687 (explaining that RAP 2.5(a)(3) “does not help a defendant when the asserted constitutional error is harmless beyond a reasonable doubt”). 10 59588-5-II To satisfy RAP 2.5(a)(3) “and raise an error for the first time on appeal, [a defendant] must” first demonstrate that “the error is truly of constitutional dimension.” O’Hara, 167 Wn.2d at 98 .

2014The court also noted that the misconduct did not involve racial bias, see, e.g., State v. Monday, 171 Wn.2d 667, 680 , 257 P.3d 551 (2011) (applying the constitutional harmless error standard where the prosecutor deliberately injected racial bias into closing argument), and the misconduct occurred during closing argument and could not be likened to instructional error.

2014The court also noted that the misconduct did not involve racial bias, see, e. g., State v. Monday, 171 Wn.2d 667, 680 , 257 P. 3d 551 ( 2011) applying the constitutional harmless error standard where the prosecutor deliberately injected 42257 -3 - II racial bias into closing argument), and the misconduct occurred during closing argument and could not be likened to instructional error.

2021In such circumstances, we apply the constitutional harmless error standard and “will vacate the conviction unless it appears beyond a reasonable doubt that the misconduct did not affect the jury’s verdict.” Id. 14 No. 54468-7-II impermissible reference to Gouley’s silence, but rather a paraphrase of a statement that Gouley made to his community corrections officer.

2014The court also noted that the misconduct did not involve racial bias, see, e.g., State v. Monday, 171 Wn.2d 667, 680 , 257 P.3d 551 (2011) (applying the constitutional harmless error standard where the prosecutor deliberately injected racial bias into closing argument), and the misconduct occurred during closing argument and could not be likened to instructional error.

2016Second, in Lundy, this court declined to follow Division One’s holding in Castillo that 13 No. 48175-8-II modifying WPIC 4.01 automatically constitutes reversible error and instead followed the general rule that erroneous jury instructions are subject to a constitutional harmless error analysis. 162 Wn.

2012In Lundy , we addressed whether a Castle instructional error raised for the first time on appeal was harmless under the constitutional harmless error standard. 162 Wn.

2025App. 2d at 52 n.2 (acknowledging that a constitutional harmless error argument could have been made for the drug court’s violations of due process). “ ‘The burden of proving harmlessness is on the State and it must do so beyond a reasonable doubt.’ ” State v. Irby, 170 Wn.2d 874, 886 , 246 P.3d 796 (2011) (quoting State v. Caliguri, 99 Wn.2d 501, 509 , 664 P.2d 466 (1983)).

2021State v. Irby, 170 Wn.2d 874, 885-86 , 246 P.3d 796 (2011). 2 Mr. Anderson cites State v. Peña-Fuentes, 179 Wn.2d 808, 812 , 318 P.3d 257 (2014), which held unlawful interception of attorney-client communications is subject to a constitutional harmless error analysis.

2025“Under this heightened standard, the defendant must show that (1) ‘no curative instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455 , 258 P.3d 43 (2011)). 7 Relying on Emery, Roden asks us to apply a constitutional harmless error analysis.

2025“Under this heightened standard, the defendant must show that (1) ‘no curative instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455 , 258 P.3d 43 (2011)). 7 Relying on Emery, Roden asks us to apply a constitutional harmless error analysis.

2026See State v. Jasper, 174 Wn.2d 96, 117 , 271 P.3d 876 (2012).

2026See State v. Jasper, 174 Wn.2d 96, 117 , 271 P.3d 876 (2012).

2011Bennett, 161 Wn.2d at 318 . ¶15 An erroneous jury instruction, however, is generally subject to a constitutional harmless error analy *872 sis.

2010State v. Bennett, 161 Wash.2d 303, 315 , 165 P.3d 1241 *941 (2007); Anderson, 153 Wash.App. at 432 , 220 P.3d 1273 . ¶ 24 In State v. Warren, 165 Wash.2d 17 , 26 n. 3, 195 P.3d 940 (2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2007 , 173 L.Ed.2d 1102 (2009), our Supreme Court declined to apply a constitutional harmless error analysis to improper prosecutorial arguments involving the application and undermining of the presumption of innocence.