Greer v. Miller

483 U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618, 1987 U.S. LEXIS 2930

• Court: Supreme Court of the United States
• Decided: September 21, 1987
• Docket: 85-2064
• Status: Published

Opinions

Justice Powell

delivered the opinion of the Court.

The question before us is whether a prosecutor’s question at trial concerning a criminal defendant’s postarrest silence requires reversal of the defendant’s conviction.

I

In 1980, Neil Gorsuch was kidnaped, robbed, and murdered after leaving a bar in Jacksonville, Illinois. Three men were charged, with the crimes: Randy Williams, Clarence Armstrong, and the respondent, Charles Miller. Williams confessed, and later entered into a plea agreement under which most of the charges against him were dropped in return for his testimony at the separate trials of Armstrong and Miller.

At Miller’s trial, Williams testified that he, his brother, and Armstrong had met Gorsuch in a tavern on the evening of February 8. Armstrong offered the victim a ride back to his hotel, and the four men left together at about 1:30 a.m. After Williams’ brother was dropped off, Armstrong began beating Gorsuch in the back seat of the car. According to Williams’ testimony, the group stopped briefly at Williams’ parents’ home to pick up a shotgun, and the men then drove to the trailer home where Miller was staying. Williams testified that Miller joined the group, and that they then traveled to a bridge on an isolated road. Williams stated that once there each of the three men shot Gorsuch in the head with the shotgun.

Respondent Miller took the stand on his own behalf and told a different story. On direct examination he testified that he had taken no part in the crime, but that Armstrong and Williams had come to the trailer home after the murder was committed seeking Miller’s advice. Miller testified that Armstrong confessed that he and Williams had beaten and robbed Gorsuch, and that they had killed him to avoid being identified as the perpetrators.

The prosecutor began his cross-examination of Miller as follows:

“Q: Mr. Miller, how old are you?

“A: 23.

“Q: Why didn’t you tell this story to anybody when you got arrested?” App. 31.

Defense counsel immediately objected. Out of the hearing of the jury, Miller’s lawyer requested a mistrial on the ground that the prosecutor’s question violated Miller’s right to remain silent after arrest. The trial judge denied the motion, but immediately sustained the objection and instructed the jury to “ignore [the] question, for the time being.” Id., at 32. The prosecutor did not pursue the issue further, nor did he mention it during his closing argument. At the conclusion of the presentation of evidence, defense counsel did not renew his objection or request an instruction concerning the prosecutor’s question. Moreover, the judge specifically instructed the jury to “disregard questions ... to which objections were sustained.” Id., at 47. Miller was convicted of murder, aggravated kidnaping, and robbery, and sentenced to 80 years in prison.

On appeal the State argued that if the prosecutor’s question about Miller’s postarrest silence was prohibited by this Court’s decision in Doyle v. Ohio, 426 U. S. 610 (1976), the error was harmless under the standards of Chapman v. California, 386 U. S. 18 (1967).¹ The Illinois Appellate Court rejected the argument and reversed the conviction, concluding that the evidence against Miller “was not so overwhelming as to preclude all reasonable doubts about the effect of the prosecutor’s comment.” State v. Miller, 104 Ill. App. 3d 57, 61, 432 N. E. 2d 650, 653-654 (4th Dist. 1982). The Supreme Court of Illinois disagreed and reinstated the trial court’s decision. State v. Miller, 96 Ill. 2d 385, 450 N. E. 2d 322 (1983). The court noted that the prosecutor’s question was an isolated comment made in the course of a lengthy trial, that the jury had been instructed to disregard the question, and that the evidence properly admitted was sufficient to establish Miller’s guilt beyond a reasonable doubt. Id., at 396, 450 N. E. 2d, at 327. It therefore held that the error did not require reversal of the conviction.

Miller then filed a petition for a writ of habeas corpus in the Federal District Court for the Central District of Illinois. The District Court denied the petition, finding “no possibility that the prosecutor’s questioning on post-arrest silence could have contributed to the conviction.” App. to Pet. for Cert. C-3. A divided panel of the Court of Appeals for the Seventh Circuit reversed the District Court’s decision, United States ex rel. Miller v. Greer, 772 F. 2d 293 (1985), as did the full court on reargument en banc. United States ex rel. Miller v. Greer, 789 F. 2d 438 (1986). The en banc court found that because Miller had received Miranda² warnings at the time of his arrest for the offenses in question, “[t]he prosecutor’s reference to Miller’s silence at the time of his arrest . . . violated his constitutional right to a fair trial.” 789 F. 2d, at 442. The court further held that the error was not harmless beyond a reasonable doubt under Chapman v. California, supra, because “[t]he evidence against Miller was not overwhelming, his story was not implausible, and the trial court’s cautionary instruction was insufficient to cure the error.” 789 F. 2d, at 447. Three judges dissented, concluding that under the harmless-error standard, “this fifteen-second colloquy, alleviated by the trial judge’s immediately sustaining the defendant’s objection and instructing the jury to ignore the prosecutor’s improper question and by a threshold jury instruction to disregard questions to which objections were sustained, did not affect the verdict.” Id., at (Cummings, J., joined by Wood and Coffey, JJ., dissenting) (footnotes omitted; record reference omitted). Judge Easterbrook also dissented. In his view, the harmless-error standard of Chapman is too stringent to be applied to this case for a number of reasons: the rule of Doyle is prophylactic" rather than innocence-protecting; the issue is presented on collateral, rather than on direct, review; the error in this case could have been cured more fully had defense counsel so requested at trial; and the violation should be viewed as prosecutorial misconduct that requires reversal only if it rendered the trial fundamentally unfair. 789 F. 2d, at 448-457.

We granted certiorari to review the Court of Appeals’ determination that the prosecutor’s question about the criminal defendant’s postarrest silence requires reversal of the conviction in this case. 479 U. S. 988 (1986).⁸ We disagree with the Court of Appeals and now reverse.

II

The starting point of our analysis is Doyle v. Ohio, 426 U. S. 610 (1976). The petitioners in Doyle were arrested for selling marijuana. They were given Miranda warnings and made no postarrest statements about their involvement in the crime. They contended at trial that they had been framed by the government informant. As part of his cross-examination, the prosecutor repeatedly asked petitioners why, if they were innocent, they did not give the explanation that they proffered at their separate trials to the police at the time of their arrest.⁴ Defense counsel’s timely objections to this line of questioning were overruled. Also over timely objections, the trial court allowed the prosecutor to argue petitioners’ postarrest silence'to the jury. 426 U. S., at 613-615, and n. 5. On review, this Court found that the Miranda decision “compelled] rejection” of the contention that such questioning and argument are proper means of impeachment. 426 U. S., at 617. The Court noted that post-arrest silence may not be particularly probative of guilt. We also found that because Miranda warnings contain an implicit assurance “that silence will carry no penalty,” 426 U. S., at 618, “‘it does not comport with due process to permit the prosecution during the trial to call attention to [the defendant’s] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony,’” id., at 619 (quoting United States v. Hale, 422 U. S. 171, 182-183 (1975) (White, J., concurring in judgment)). Accordingly, the Court in Doyle held 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.

This Court has applied the holding of Doyle in a number of subsequent cases. These later holdings confirm that “Doyle rests on ‘the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.’” Wainwright v. Greenfield, 474 U. S. 284, 291 (1986) (quoting South Dakota v. Neville, 459 U. S. 553, 565 (1983)). Thus, “absen[t]^the sort of affirmative assurances embodied in the Miranda warnings,” the Constitution does not prohibit the use of a defendant’s postarrest silence to impeach him at trial. Fletcher v. Weir, 455 U. S. 603, 607 (1982). See Jenkins v. Anderson, 447 U. S. 231, 240 (1980) (“[N]o governmental action induced [the defendant] to remain silent before arrest”) (emphasis added); Anderson v. Charles, 447 U. S. 404, 408 (1980) (cross-examination respecting inconsistent postarrest statements “makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent”).

There is no question that Miller received the “implicit assurance” of Miranda warnings in this case. Thus, this prerequisite of a Doyle violation was met. But the holding of Doyle is that the Due Process Clause bars “the use for impeachment purposes” of a defendant’s postarrest silence. 426 U. S., at 619 (emphasis added). The Court noted that “ ‘it does not comport with due process to permit the prosecution during trial to call attention to [the defendant’s] silence.’” Ibid, (quoting United States v. Hale, supra, at 182-183 (White, J., concurring in judgment)) (emphasis added). It is significant that in each of the cases in which this Court has applied Doyle, the trial court has permitted specific in; quiry or argument respecting the defendant’s post-Miranda silence. See Jenkins v. Anderson, supra, at 233-234 (extended questioning and closing argument reference); Anderson v. Charles, supra, at 405-406 (questioning); Fletcher v. Weir, supra, at 603-604 (questioning); South Dakota v. Neville, supra, at 564 (admission of refusal to take blood-alcohol test); Wainwright v. Greenfield, supra, at 285, 287 (closing argument).

In contrast to these cases, the trial court in this case did not permit the inquiry that Doyle forbids. Instead, the court explicitly sustained an objection to the only question that touched upon Miller’s postarrest silence. No further questioning or argument with respect to Miller’s silence occurred, and the court specifically advised the jury that it should disregard any questions to which an objection was sustained.⁵ Unlike the prosecutor in Doyle, the prosecutor in this case was not “allowed to undertake impeachment on,” or “permitted] ... to call attention to,” Miller’s silence. 426 U. S., at 619, and n. 10. The fact of Miller’s postarrest silence was not submitted to the jury as evidence from which it was allowed to draw any permissible inference, and thus no Doyle violation occurred in this case.⁶

Ill

Although the prosecutor’s question did not constitute a Doyle violation, the fact remains that the prosecutor attempted to violate the rule of Doyle by asking an improper question in the presence of the jury. This Court has recognized that prosecutorial misconduct may “so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974). To constitute a due process violation, the prosecutorial misconduct must be “‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’” United States v. Bagley, 473 U. S. 667, 676 (1985) (quoting United States v. Agurs, 427 U. S. 97, 108 (1976)).

The Illinois Supreme Court, applying the analysis of Chapman v. California, 386 U. S. 18 (1967), found that the prosecutor’s question was harmless beyond a reasonable doubt. 96 Ill. 2d, at 396, 450 N. E. 2d, at 327. We thus are convinced that it would find no due process violation under the facts of this case.⁷ When a defendant contends that a prosecutor’s question rendered his trial fundamentally unfair, it is important “as an initial matter to place th[e] remar[k] in context.” Darden v. Wainwright, 477 U. S. 168, 179 (1986). See Donnelly v. DeChristoforo, supra, at 639 (determining whether “remarks, in the context of the entire trial, were sufficiently prejudicial to violate respondent’s due process rights”). The sequence of events in this case — a single question, an immediate objection, and two curative instructions⁸ — clearly indicates that the prosecutor’s improper question did not violate Miller’s due process rights. The Illinois Supreme Court’s determination that the properly admitted evidence at trial “was sufficient to prove defendant’s guilt beyond a reasonable doubt,” 96 Ill. 2d, at 396, 450 N. E. 2d, at 327, further supports this result.⁹

IV

We reverse the judgment of the Court of Appeals for the Seventh Circuit and remand for proceedings consistent with this opinion.

It is so ordered.

1 In Chapman, the Court held that even errors of constitutional magnitude may be harmless if it is clear beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. 386 U. S., at 24.

2 Miranda v. Arizona, 384 U. S. 436, 467-473 (1966).

8 The question presented for review in the petition for certiorari was: “Whether, when considering violations of Doyle v. Ohio in federal habeas corpus proceedings, the standard of review should be whether the error substantially affected the course of the trial rather than whether the error was harmless beyond a reasonable doubt.” Pet. for Cert. i. Throughout their briefs and argument, the parties rather loosely refer to “Doyle violations.” But the State presents extensive argument as to the proper standard for assessing a Doyle violation, Brief for Petitioner 24-29, stating at the beginning of its brief that the “effort to impeach respondent with his prior silence constituted an attempted violation of [Doyle].” Id., at 16 (emphasis added). Miller responds to this argument. Brief for Respondent 24-37. Before reaching the question whether the harmless-error standard applies, we must be satisfied that an error of constitutional dimension occurred. This fundamental question is fairly included in the question presented for review. See this Court’s Rule 21.1(a).

4 The questions by the prosecutor and the defendants’ answers in these trials included:

“ ‘Q. [I]f that is all you had to do with this and you are innocent, when [the agent] arrived on the scene why didn’t you tell him?’ ” Doyle v. Ohio, 426 U. S., at 614.

‘“Q. . . .You are innocent?

‘“A. I am innocent. Yes Sir.

“ ‘Q. That’s why you told the police department and [the agent] when they arrived— . . . about your innocence?

‘“A. ... I didn’t tell them about my innocence. No.’” Id., at 614-615, n. 5.

“ ‘Q. [Y]ou said instead of protesting your innocence, as you do today, you said in response to a question of [the agent], — “I don’t know what you are talking about.”

‘“A. I believe what I said, — “What’s this all about?” . . .

“‘Q. All right, — But you didn’t protest your innocence at that time?

“‘A. Not until I knew what was going on.’” Id., at 615, n. 5.

5 According to the dissent, we “argu[e] in effect that a single comment cannot be sufficient to constitute a Doyle violation.” Post, at 770. On the contrary, we hold that the sequence of events at the trial, beginning with the single comment — but including particularly the proper and immediate action by the trial court, and the failure by defense counsel to request more specific instructions — indicates that Miller’s postarrest silence was not used against him within the meaning of Doyle.

The dissent also finds that “the prosecutor clearly got full mileage out of his Doyle violation during closing argument ... by stressing that the accomplice’s testimony was credible precisely because he had not remained silent after arrest.” Post, at 773, n. 3. First, whether this argument constitutes.“fuIl mileage” is certainly debatable. Second, the dissent fails’ to note that defense counsel did not object to that portion of the prosecutor’s argument on this ground.

6 Justice Stevens believes that there was a violation of Doyle in this case. He nevertheless joins the judgment on the ground that “Doyle errors are not so fundamentally unfair that convictions must be reversed whenever the State cannot bear the heavy burden of proving that the error was harmless beyond a reasonable doubt.” Post, at 768-769. As we conclude that “no Doyle violation occurred in this case,” we have no occasion to consider whether Doyle errors may be viewed differently on collateral attack from on direct review.

7 The Federal District Court agreed with the State Supreme Court. App. to Pet. for Cert. C-1—C-4. Because the Chapman harmless-error standard is more demanding than the “fundamental fairness” inquiry of the Due Process Clause, it is clear that the District Court also would have found no due process violation. Although the Court of Appeals did not specifically address the due process question, it analyzed the facts of this ease fully and in detail. See United States ex rel. Miller v. Greer, 789 (CA7 1986). We conclude that the facts, as fully developed and reviewed in the five decisions below, are sufficient for us to determine whether the prosecutor’s question in this case rises to the level of a due process violation.

8 The first curative instruction occurred immediately after the trial court sustained defense counsel’s objection to the prosecutor’s question. Although the trial judge indicated that his ruling on the admissibility of this type of evidence was “for the time being,” App. 32, he later told counsel at a bench conference that he had determined that this type of questioning was improper. Id., at 43. Defense counsel did not request that any additional instructions be given to the jury. Before the jury began to deliberate, the trial judge nevertheless gave a second instruction to the jury that it should “disregard questions ... to which objections were sustained.” Id., at 47.

We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an “overwhelming probability” that the jury will be unable to follow the court’s instructions, Richardson v. Marsh, 481 U. S. 200, 208 (1987), and a strong likelihood that the effect of the evidence would be “devastating” to the defendant, Bruton v. United States, 391 U. S. 123, 136 (1968). We have no reason to believe that the jury in this case was incapable of obeying the curative instructions. And far from being “devastating,” the fact of Miller’s postarrest silence was at most “insolubly ambiguous.” Doyle v. Ohio, 426 U. S. 610, 617 (1976). Miller argues that the curative instructions should have been more specific. But Miller’s trial counsel bore primary responsibility for ensuring that the error was cured in the manner most advantageous to his client. Once it became apparent that the judge was not going to grant a mistrial, it was the duty of counsel to determine what strategy was in his client’s best interest.

9 This evidence primarily consisted of the detailed testimony of Williams that was corroborated by physical and other testimonial evidence. See 96 Ill. 2d, at 387-392, 450 N. E. 2d, at 323-325.