Suspect's silence allowed as evidence at trial, court rules

After Richard Tom's car slammed into another vehicle at a Redwood City intersection in 2007, killing an 8-year-old girl and injuring her sister, he asked police if he could go home, then talked with them in the patrol car. One thing he didn't ask about - as the prosecutor repeatedly told the jury at his manslaughter trial - was the victims' condition.

Tom's conviction and seven-year prison sentence were overturned in 2012 by a state appeals court, which said the prosecution had wrongly taken advantage of Tom's right to remain silent in police custody.

But Thursday, a divided state Supreme Court established a different standard: Prosecutors can introduce evidence of a suspect's silence - even someone like Tom, who hadn't been questioned or advised of his rights. The exception is a suspect who has invoked those rights by telling police he won't discuss the subject.

Tom "needed to make a timely and unambiguous assertion of the privilege (against saying anything that might incriminate him) in order to benefit from it," Justice Marvin Baxter wrote for a four-member majority.

The court returned the case to the appellate court to decide whether Tom had told the police he wanted to remain silent - or, if not, whether evidence of his failure to ask about the victims was too prejudicial to present to the jury.

Tom's speeding car struck a car driven by Lorraine Wong, who was turning left onto Woodside Road from Santa Clara Avenue after stopping at a stop sign. Wong's 8-year-old daughter, Sydney Ng, was killed, and another daughter, 10-year-old Kendall Ng, was seriously injured.

There was no stop sign on Woodside, and Tom's lawyer argued that he had the right-of-way. But prosecutors said Tom was at fault because he was driving at least 67 mph, according to a prosecution investigator, on a road with a 35 mph limit. A defense investigator estimated his speed at 49 to 52 mph.

During final arguments to the jury, the prosecutor said one aspect of Tom's post-accident conduct was "particularly offensive - he never, ever asked, 'Hey, how are the people in the other car doing?' " That showed, the prosecutor said, that "he was obsessed with only one thing ... saving his own skin."

In a dissenting opinion Thursday, Justice Goodwin Liu said the prosecutor's comments were improper and might have influenced the jury's verdict that Tom had been grossly negligent, defined in the jury instructions as an "I-don't-care attitude."

Tom had served about three years of his sentence before being freed on bail following the 2012 appellate ruling.

His lawyer, Marc Zilversmit, said the court apparently is insisting that a defendant "invoke his right to remain silent about a question they never asked him."