Gerald Wayne Phelps v. Jack R. Duckworth, Warden Indiana State Prison, and Linley E. Pearson, Attorney General of Indiana

772 F.2d 1410, 1985 U.S. App. LEXIS 23186, 54 U.S.L.W. 2231

Opinions

CUMMINGS, Chief Judge, with whom BAUER, WOOD, ESCHBACH, COFFEY and RIPPLE, Circuit Judges, join.

Petitioner Gerald Wayne Phelps was convicted in the Superior Court of Vanden-burgh County, Indiana, of rape and kidnapping in 1974. He received concurrent sentences of two to twenty-one years and life imprisonment, and his conviction was affirmed unanimously by the Indiana Supreme Court. 266 Ind. 66, 360 N.E.2d 191 (1977), certiorari denied, 434 U.S. 844, 98 S.Ct. 146, 54 L.Ed.2d 110.

In 1978 petitioner sought a writ of habe-as corpus in the United States District Court for the Southern District of Indiana. His petition was granted chiefly because of “the denial of defendant’s right to silence by the questions asked by the prosecutor in his cross-examination of the petitioner * * 582 F.Supp. 401, 410 (1983). On appeal, the judgment of the district court was affirmed in an opinion by Senior District Judge Gordon, Circuit Judge Cudahy concurring and the author of this opinion dissenting. 757 F.2d 811, 824, 825 (1985). The respondent Attorney General and respondent Warden filed a petition for rehearing en banc on the grounds that petitioner was not denied any constitutional rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, because he had not maintained post-arrest silence, and furthermore any Doyle error was harmless in view of the strong evidence against Phelps. Rehearing en banc was granted on May 20, 1985, and we now reverse the judgment of the district court.

The facts of the case were summarized as follows by the Supreme Court of Indiana (360 N.E.2d at 192-193):

The prosecutrix [Mrs. Theresa Clem] was a dancer at a bar in Evansville. Shortly after midnight on March 27, 1974, she left her place of employment on foot. The defendant, who had met her earlier at the bar, drove up alongside her and offered her a ride home. The defendant did not take her to her destination. He forced her to commit fellatio and forcibly raped her in the back seat of his car. The prosecutrix escaped by jumping from the car. She called the police from a nearby home and soon thereafter identified the defendant at the bar where he was apprehended. The defendant admitted sexual intercourse but claimed it was consensual, not forcible.

The jury credited Mrs. Clem’s testimony which was initially corroborated by a police officer, a physician, and the owner of the house where she fled after the attack, a Mrs. Nellie Casteel. Mrs. Casteel had never met Theresa Clem prior to the March 28, 1974, incident, and testified that the victim was in a “terrified and scared” condition upon arriving at her house (R. 195). Mrs. Clem was able to lead the police to the site of the rape, a secluded open field, only a few blocks from Mrs. Casteel’s house, where tire tracks in the soil and grass were discovered (R. 218). The bartenders of the lounge where Mrs. Clem worked (the Copy Bar) and where Phelps had been that evening and another policeman also corroborated her testimony, identifying the site of the rape as being 5-6 minutes away from the lounge. The bartenders added that they had never seen Mrs. Clem in Phelps’ presence prior to March 27, the night of the rape, thus contradicting Phelps. Her injuries were attributable to being choked by Phelps and to jumping from the fast-moving car he was driving.

In his testimony, Phelps admitted that he had previously been convicted of second-degree burglary. He said that Mrs. Clem and he talked at the lounge and she agreed to meet him in a car he had borrowed¹ (which was, of course, unfamiliar to Mrs. Clem). He said that when they were having intercourse in the parking lot behind the lounge, a stranger pulled up in another car and jerked Mrs. Clem out of the car and drove off with her while she was screaming and crying. The stranger allegedly caused the victim to fall and thereby sustain injuries. Phelps testified that after his arrest and Miranda warnings, he told the police at the station house that he was not guilty of the kidnapping and rape but was nevertheless afraid that he might be killed by Mrs. Clem’s husband and therefore asked for protective custody. While he also said that he asked the police for a polygraph test, this was denied by the police officers in question.

In the panel opinion in this case, the majority stated that “this appeal turns on the first instance of alleged [.Doyle ] misconduct,” 757 F.2d at 815, and the concurring opinion also rested on an assessment that “the Doyle violation was clear * * 757 F.2d at 824. Our affirmance is based on the absence of a Doyle violation and on harmless error in any event.

I

Doyle v. Ohio involved two petitioners who were arrested and given the warnings dictated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. At their trials, they told exculpatory stories. On cross-examination the prosecutor used each defendant’s post-arrest silence for impeachment purposes. The trial court overruled timely objections. On appeal to the Ohio Court of Appeals, the petitioners unsuccessfully asserted that the trial court erred in allowing the prosecutor to cross-examine them about their post-arrest silence. The Supreme Court reversed the convictions, stating “We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.” 426 U.S. at 619, 96 S.Ct. at 2245.

In Doyle, after his arrest and Miranda warnings petitioner Wood remained completely silent about the alleged marijuana sale. Petitioner Doyle’s comments to the narcotics agents after his arrest and receipt of Miranda warnings also did not discuss the offense at that time but merely commented in part, “What’s this all about?” and “I don’t know what you’re talking about.” His comments and an additional noncommital one mentioned in the Doyle dissent were treated by all members of the Supreme Court as “post-arrest silence” in that they did not refer to the crime charged. In contrast to Doyle, Phelps did not remain silent after his arrest and Miranda warnings but instead testified at the trial that he had at least twice told the police at the station that he did not commit these crimes (360 N.E.2d at 194), that he had even asked for a polygraph test to show his innocence (360 N.E.2d at 193), and that he had requested protection from Mr. Clem (757 F.2d at 814; R. 277). Moreover, as Judge Brooks’ opinion observed, while still at the Copy Bar Phelps “said he denied that he raped the prosecuting witness [Mrs. Clem] when he was approached by a bar employee and informed that the prosecuting witness had made such an accusation in a telephone call” (582 F.Supp. at 403). He never claimed before trial that Mrs. Clem consented to intercourse. Accordingly, it seems clear to us that there was no post-arrest silence in this case. Instead, as we read the record, Phelps told two different stories. Before trial, as we see it, he denied that he had been sexually involved with Mrs. Clem, whereas at the trial he told the completely different story that he was in a car with Mrs. Clem and had sexual intercourse with her, but that it was with her consent. To explain her bruises, he added at trial that some stranger had abducted her from Phelps’ car and injured her in so doing. Moreover, unlike the Doyle case, when the prosecutor sought to question Phelps about his failure to tell his present elaborate exculpatory story to the police after his arrest, defense counsel made an objection which was twice sustained and the trial court twice admonished the jury that Phelps had no obligation to tell the police or prosecutor anything.

If there were any doubt about Doyle’s applicability here, it was dispelled by Anderson v. Charles, 447 U.S. 404, 100 S.Ct. , 65 L.Ed.2d 222. There the respondent had been convicted of first-degree murder and lost his appeal to the Michigan Court of Appeals. After the district court refused to grant a writ of habeas corpus, the Sixth Circuit reversed (610 F.2d 417), citing Doyle v. Ohio. The Supreme Court reversed the judgment of the court of appeals because Doyle only “bars the use against a criminal defendant of silence maintained after receipt of governmental [Miranda ] assurances.” 447 U.S. at 408, 100 S.Ct. at 2182. Since Charles had not remained silent when questioned by the police following Miranda warnings, the Supreme Court held Doyle to be inapplicable.² Similarly here, as seen, there was no post-arrest silence by Phelps, so that Charles requires reversal of the district court’s grant of the writ of habeas corpus to Phelps. Accord from this Circuit: United States v. Samples, 713 F.2d 298, 304 (7th Cir.1983); Jacks v. Duckworth, 651 F.2d 480, 483 (7th Cir.1981), certiorari denied, 454 U.S. 1147, 102 S.Ct. 1010, 71 L.Ed.2d 300. See also United States v. Crowder, 719 F.2d 166, 170-172 (6th Cir.1983), certiorari denied, — U.S.-, 104 S.Ct. 2352, 80 L.Ed.2d 825; Hockenbury v. Sowders, 718 F.2d 155, 158-159 (6th Cir.1983); United States v. Dixon, 593 F.2d 626, 630 (5th Cir.1979), certiorari denied, 444 U.S. 861, 100 S.Ct. 126, 62 L.Ed.2d 82.

Petitioner’s cases are not in point. Thus in United States ex rel. Smith v. Rowe, 618 F.2d 1204 (7th Cir.1980), the defendant remained silent when police came to interview his live-in girl friend in his presence. United States ex rel. Allen v. Rowe, 591 F.2d 391 (7th Cir.1979), largely involved the issue of pre-arrest silence and is no longer viable in light of the Supreme Court’s holding in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490. In United States ex rel. Ross v. Fike, 534 F.2d 731 (7th Cir.1976), the defendant remained silent when confronted and identified in a lineup. Finally, in United States v. Impson, 531 F.2d 274 (5th Cir.1976), defendant made no statement whatever at the time of his arrest.

II

Impermissible prosecutorial comment regarding post-arrest silence does not require reversal if the court determines it is harmless beyond a reasonable doubt. See United States ex rel. Allen v. Franzen, 659 F.2d 745 (7th Cir.1981), certiorari denied, 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 444 (applying the standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705). The determination must be reached on a case-by-case basis and requires an examination of various factors including:

1. The use to which the prosecution puts the post-arrest silence.

2. Who elected to pursue the line of questioning.

3. The quantum of other evidence indicative of guilt.

4. The intensity and frequency of the reference.

5. The availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

United States v. Massey, 687 F.2d 1348, 1353 (10th Cir.1982); Williams v. Zahrad-nick, 632 F.2d 353, 361-362 (4th Cir.1980). In light of the brief and solitary nature of the prosecutor’s alleged Doyle violation, the trial judge’s immediate and correct curative admonishment given to the jury, the timely objection of defense counsel preventing Phelps from answering the challenged question, the overwhelming evidence of defendant’s guilt revealed by the record and the weakness of his alibi, we conclude that any improper reference to post-arrest silence here would be harmless beyond a reasonable doubt.³

A finding of harmless error is not precluded by the mere fact that defendant offered an alibi at trial, and implausible or highly contradictory testimony offered by the accused has properly been rejected as basis for reversal in this context. See United States v. Shaw, 701 F.2d 367, 383 (5th Cir.1983), certiorari denied, — U.S. -, 104 S.Ct. 1419, 79 L.Ed.2d 744; United States v. Remigio, 767 F.2d 730, 736 (10th Cir.1985). The following inconsistencies or highly implausible aspects of Phelps’ testimony support the Indiana Supreme Court’s finding of harmless error (360 N.E.2d 194). First, Phelps testified that the entire incident of consensual relations with Clem, her subsequent abduction, and his return to the Copy Bar elapsed over a period of “ten to fifteen minutes” (R. 255). Mrs. Clem, however, testified that the rape incident transpired over a period of twenty minutes to an hour (R. 124-125), and more significantly, two witnesses, a bartender and a patron of the bar, both testified that Phelps absented himself from the Copy Bar (following Clem’s departure) for periods of thirty minutes and thirty to thirty-five minutes, respectively (R. 202, 306). Second, the defendant’s own witness, Mr. Donald Smith, testified that he introduced Mrs. Clem and Phelps for the first time approximately two weeks prior to the rape incident (R. 229). Phelps testified, however, that he became acquainted with Clem (via Mr. Smith’s introduction) approximately three weeks before the March 28 incident (R. 250). Third, Phelps claimed that a stranger discovered the car in which Mrs. Clem and he were having sexual relations despite the fact that Phelps’ car had been borrowed and only his employer and his friend who remained in the bar knew the type of car Phelps was driving that evening (R. 262-265). Finally, it is worth noting the plain implausibility of Phelps’ testimony that while he and Mrs. Clem were allegedly having intercourse in the back seat of Phelps’ car, Mrs. Clem, lying down beneath Phelps, would raise her head up to look at each car that entered the parking lot (R. 254, 266).

Phelps’ story is also discredited by the great difficulty in explaining Mrs. Clem’s confirmed appearance, in a terrified state, at the house of a complete stranger, located a significant distance from the Copy Bar parking lot and a short distance from the alleged site of the rape (marked by tire tracks) to which Mrs. Clem was able to lead the police. See supra pp. 1411-1412.

Consequently, this Court concurs in the respondent officials’ characterization of Phelps’ trial testimony as “so implausible on its face that it was unworthy of belief” and as without corroboration (Pet. 2, 12). Even the panel majority opinion admitted that “certain details of Mr. Phelps’ testimony seem unlikely” (757 F.2d at 821), and the concurring opinion remarked that his “story has its odd moments” and noted that Mrs. Clem was terrified when she fled to Mrs. Casteel’s home and that Mrs. Clem called police from there to report the kidnapping and rape (757 F.2d at 824 n. 1). Those assessments tend to support the State’s argument that in such circumstances any Doyle error was harmless and certainly did not influence the guilty verdict. See United States v. Laughlin, 772 F.2d 1382, 1390-1391, 1392-1393 (7th Cir.1985) (opinion approved but not published) (arguable Doyle violation harmless beyond a reasonable doubt where state’s evidence overwhelming and defendant’s story implausible).

Under similar circumstances the Tenth Circuit recently ruled that the prosecutor’s reference to the defendant’s post-arrest silence was harmless beyond a reasonable doubt:

It is true the government chose to pursue a line of questioning delving into defendant’s exercise of his right to remain silent, and obviously intended to use the question for impeachment purposes. In this case, however, the question was asked but once, and it was never answered by the defendant. Timely objection was made and a curative admonishment was given to the jury immediately. Unlike the references to silence in Doyle and the other cases cited above, the intensity and frequency of the reference to this defendant’s silence was minimal. The record is completely void of any reference to Remigio’s post-arrest silence subsequent to the incident discussed above. Finally, the record before us overwhelmingly supports Remigio’s conviction.

United States v. Remigio, at 735. Contrast Velarde v. Shulsen, 757 F.2d 1093 (10th Cir.1985) (Doyle violation not harmless beyond a reasonable doubt where there were repeated references to petitioner’s post-arrest silence, including during closing argument, defendant’s objections to the constitutional error were overruled, the trial was extremely short in duration (thus highlighting the errors), the prosecution’s case was entirely circumstantial and there was no corroborating evidence of either side’s case). The defendant in Remigio, who was charged with the manufacturing of methamphetamines, contended at trial that he was simply unaware of what was being manufactured in his presence, but the Court dismissed his testimony, noting that “the jury obviously found his story incredulous [sic ].” Remigio, at 736.

In assessing the effect of improper prosecutorial comment courts have recognized the greatly reduced possibility of harmful prejudice where the inappropriate remark is isolated and the trial judge provides a quick, firm curative admonishment. See, e.g., United States v. Suggs, 755 F.2d 1538, 1541 (11th Cir.1985); United States v. Milstead, 671 F.2d 950, 953 (5th Cir.1982); United States v. Bridwell, 583 F.2d 1135, 1139 (10th Cir.1978). As noted, supra p. 1412, here the prosecutor questioned Phelps only once concerning his failure to previously reveal his exculpatory story, the defense counsel immediately objected, and the trial judge at once sustained the objection and explained that Phelps had no duty to speak, thus preventing comment on any silence of the defendant. In view of the length of the trial (four days), see United States v. Brid-well, 583 F.2d at 1139 (Doyle violation harmless where there was a “relatively brief reference in the context of a four-day trial”), in which the government’s strong case was substantially corroborated and the defendant’s alibi was contradictory and implausible, this type of error must be considered harmless beyond a reasonable doubt.

Judge Brooks and the panel majority considered the supposed Doyle violation alone sufficient to warrant the issuance of the writ of habeas corpus even though the Supreme Court of Indiana had disposed of that issue as follows (360 N.E.2d 194):

That [Doyle ] case is distinguishable, however, in that a prompt objection was sustained and an admonishment given. The prosecutor was not permitted to repeat the question and it was given no sanction by the trial judge. Additionally, the defendant testified during the same sequence of questions that he had protested his innocence to the police on at least two occasions after his apprehension. The admonishment in this ease was sufficient to cure the error of the prosecutor.

Nevertheless the district judge and the panel majority of this Court buttressed their conclusion of reversible error by reference to three other instances of alleged prosecutorial misconduct. The petition for rehearing en banc did not refer to these episodes and our grant of rehearing was not premised thereon. For the reasons given in the earlier dissenting opinion herein (757 F.2d at 825-826), we agree that none of them, singly or collectively, warranted disturbing Phelps’ conviction. At the worst, the four alleged instances of prose-cutorial misconduct were harmless beyond a reasonable doubt. This conclusion is especially warranted under the narrow scope of review afforded in a federal habeas corpus case involving a state criminal proceeding that has passed the muster of its highest court on identical grounds. Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431.

The judgment of the district court is Reversed.

1

. Mrs. Clem's corroborated story was that she was going to be driven home by Mrs. Crooks but that the latter’s involvement in an argument with a patron of the lounge caused Mrs. Clem to start walking home. It is noteworthy that Phelps’ counsel is "not dissatisfied” with respondents’ version of the facts (Pet. 1).

2

. In support of its ruling in Charles, the Supreme Court cited with approval United States v. Agee, 597 F.2d 350, 354-356 (3d Cir.) (en banc), certiorari denied, 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315; United States v. Mireles, 570 F.2d 1287, 1291-1293 (5th Cir.1978); United States v. Goldman, 563 F.2d 501, 503-504 (1st Cir.1977), certiorari denied, 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 768.

3

. Since the harmless beyond a reasonable doubt standard is satisfied here, we reserve the question whether a lesser showing might suffice in a case such as this.