REVISED United States Court of Appeals,
Fifth Circuit.
No. 96-60673.
Robert Mitchell PITTS, Plaintiff-Appellant,
v.
James V. ANDERSON, Superintendent, Mississippi State Penitentiary, Defendant-Appellee.
Sept. 19, 1997.
Appeal from the United States District Court for the Southern District of Mississippi.
Before KING, DAVIS and DeMOSS, Circuit Judges.
DAVIS, Circuit Judge:
Mississippi state prisoner Robert Mitchell Pitts appeals from
the district court's denial of his habeas corpus petition filed
pursuant to 28 U.S.C. § 2254. Pitts alleges that the prosecutor in
his state trial improperly impeached him using his post-Miranda1
silence, in violation of Doyle v. Ohio, 426 U.S. 610, 619-20, 96
S.Ct. 2240, 2245-46, 49 L.Ed.2d 91 (1976). Concluding that the prosecutor's questions and comments do not violate Doyle, we affirm
the judgment of the district court and deny the writ of habeas
corpus.
I.
This case arises from an incident occurring in the early
morning of January 14, 1990, in a rural part of Wayne County,
1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, (1966).
1 Mississippi. Pitts had been deer hunting and two of his dogs were
loose. He received a report that his dogs were at the home of 68-
year-old Pauline Smithinger and her 77-year-old cousin, Roy
Baggett. Pitts was told that Smithinger had tied up the dogs and
was going to kill them unless the owner came for them. Around one
o'clock in the morning, Pitts went to Smithinger's home. Finding
the gate to Smithinger's yard locked, Pitts shot off the lock with
his rifle. He then went in and retrieved his dogs.
There is some dispute as to what happened next, as Pitts's and
Smithinger's versions of the events conflict. At trial, Pitts
testified that Smithinger came out of her house trailer and yelled
obscenities at him as he attempted to explain that he was there to
pick up his dogs. He further testified that Baggett came out of
the trailer with a pistol and began shooting at him. Pitts then
retrieved his rifle from his truck, where he had put it after
shooting the lock. According to Pitts, Smithinger grabbed the
rifle barrel and shook it. While Smithinger was shaking the rifle,
it went off several times, striking Baggett in the arm and severing
an artery. Pitts testified that he offered to bring Baggett to the
hospital, but Smithinger refused. Pitts then went back to his deer
camp and went to sleep. Baggett bled to death several hours later.
Smithinger testified that she was awakened early the morning
of January 14 when Pitts came to her house to get his dogs. She
told him that it was late and urged him to come back at a more
reasonable time. She testified that Pitts was holding a rifle and
had his finger on the trigger. Baggett then came out of the house
2 and Pitts turned and pointed his rifle at him.2 Smithinger grabbed
the rifle so that it would fire into the air, but Pitts shook her
away. Pitts then shot Baggett. Smithinger testified that Pitts
did not offer to help Baggett, but instead got into his truck and
drove away.
Later that morning, Sheriff Marvin Farrior went to Pitts's
deer camp and arrested him. After being advised of his Miranda
rights, Pitts first told the sheriff that he did not know what the
sheriff was talking about. The sheriff then told Pitts that he
would need to see the gun that he had with him the previous night.
Pitts then told the sheriff that "a man come out on [me]. The man
come out on me with a gun." The sheriff asked what kind of gun,
and Pitts replied "a pistol." Pitts made no further statements
regarding what happened at Smithinger's home.
Pitts was indicted and tried for murder. Pitts's defense at
trial was that his rifle accidentally discharged during his tussle
with Smithinger. During direct examination of Sheriff Farrior, the
prosecution elicited testimony that after being read his Miranda
rights, Pitts stated that "a man come out on him. The man come out
on me with a gun." The prosecutor then inquired whether Pitts had
told the sheriff about Baggett firing the gun or Smithinger
grabbing the rifle while the shots went off. The sheriff responded
that "[h]e didn't tell me anything about that."
2 Smithinger testified that Baggett had a pistol tucked in his belt, but that he never raised it at Pitts, and certainly never fired it at him. Smithinger testified that Baggett had fired the pistol earlier in the evening to scare away coyotes.
3 The prosecution asked similar questions of Pitts on
cross-examination. Pitts responded that "I didn't tell the sheriff
nothing else after I told him he come on me with a pistol." During
closing argument, the prosecutor returned to Pitts's failure to
include the accidental nature of the shooting in his original
statement to Sheriff Farrior, arguing that:
The sheriff said, I have a warrant for your arrest, Mr. Pitts. He said, I don't know what you are talking about. He didn't say, oh, sheriff, it was a terrible accident. I don't know what you are talking about, he said.... He told the sheriff, he came on me with a gun. He didn't say it was an accident. He didn't say Mrs. Pauline [Smithinger] had her finger on the trigger and fired the gun. He didn't say it occurred during a tussle. All he said was, he came on me with a gun.
The prosecutor then suggested that some time after speaking with
the sheriff, Pitts learned that the pistol had been fired and
fabricated the story about Baggett firing to conform with the
evidence. Pitts's counsel failed to object to most of the
prosecution’s questions and comments regarding omissions in Pitts's
post-arrest statement.
The jury convicted Pitts of manslaughter, and he was sentenced
to 20 years imprisonment. On direct appeal, the Mississippi
Supreme Court affirmed Pitts's sentence and conviction. Pitts's
counsel did not raise the Doyle issue on direct appeal. Pitts then
filed a state habeas corpus petition, arguing for the first time
that the prosecutor's statements regarding his post-Miranda silence
violated Doyle. The Mississippi Supreme Court denied Pitts's
petition, holding that Pitts's habeas claims were "barred from
4 consideration by Miss.Code Ann. § 99-39-213 and fail to present a
substantial showing of the denial of a state or federal right as
required by Miss.Code Ann. § 99-39-27."4
Pitts then filed a federal petition for writ of habeas corpus.
In his report and recommendation, the magistrate judge, concluding
that the prosecutor impeached Pitts on his post-Miranda statements,
rather than on his silence, recommended that Pitts's petition be
denied. The district court adopted the magistrate judge's report
and recommendation and added that even if there was Doyle error, it
did not justify habeas relief because it did not influence the
jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 626, 113
S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993) (announcing standard of
review of Doyle error in habeas cases). Pitts timely appealed.
II.
A.
3 Section 99-39-21(1) provides that:
Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver. 4 Section 99-39-27(5) provides, in relevant part, that:
Unless it appears from the face of the application ... that the claims presented by such are not procedurally barred under section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application.
5 Before addressing the putative Doyle violation, we must
consider the state's argument that Pitts’s petition was properly
dismissed because of a procedural default. We review the district
court's denial of federal habeas relief based on a state procedural
ground de novo. Livingston v. Johnson, 107 F.3d 297, 311 (5th
Cir.1997); Amos v. Scott, 61 F.3d 333, 338 (5th Cir.1995). As
described above, Pitts's attorneys failed to object at trial to the
prosecutor's questions and comments and failed to raise his Doyle
argument on direct appeal. Under the procedural default doctrine,
a federal court may not consider a state prisoner's federal habeas
claim when the state based its rejection of that claim on an
adequate and independent state ground. See Coleman v. Thompson,
501 U.S. 722, 750, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640 (1991);
Martin v. Maxey, 98 F.3d 844, 847 (5th Cir.1996).
Where, as here, a state court clearly and expressly states
that its judgment rests on a state procedural bar, a presumption
arises that the state court decision rests on independent and
adequate state law grounds. See Harris v. Reed, 489 U.S. 255, 263,
109 S.Ct. 1038, 1043, 103 L.Ed.2d 308 (1989); Martin, 98 F.3d at
847. A defendant may rebut this presumption by establishing that
the procedural rule is not strictly or regularly followed by the
state courts. See Moore v. Roberts, 83 F.3d 699, 702 (5th
Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 772, 136 L.Ed.2d
717 (1997). Pitts, however, does not argue that § 99-39-21(1) is
not strictly or regularly applied, and he therefore fails to rebut
the presumption.
6 Nonetheless, Pitts may still prevail by demonstrating (1)
cause for the procedural default and actual prejudice as a result
of the alleged violation of federal law or (2) that failure to
consider his claims will result in a fundamental miscarriage of
justice. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2564. Pitts
attempts to demonstrate cause by arguing that his attorney's
failure to object and raise the Doyle issue on appeal constituted
ineffective assistance of counsel. See Coleman, 501 U.S. at 753-
54, 111 S.Ct. at 2566-67 ("Attorney error that constitutes
ineffective assistance of counsel is cause.").
To establish ineffective assistance of counsel, Pitts must
show that (1) his counsel's performance was deficient and (2) the
deficient performance prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984). In determining whether an attorney's performance is
deficient, "a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy." Id. at 689, 104 S.Ct.
at 2065 (internal quotation omitted). "Our scrutiny of counsel's
performance [is] "highly deferential,' and we must make every
effort "to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time.' "
Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.) (quoting
7 Strickland, 466 U.S. at 689, 104 S.Ct. at 2065), cert. denied, 513
U.S. 960, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994). If, and only if,
"we adjudge counsel's performance to have been deficient, then we
must determine whether there exists a reasonable probability that
but for the complained-of error the outcome of the trial or appeal
would have been different." Sharp v. Johnson, 107 F.3d 282, 286 n.
9 (5th Cir.1997).
For reasons that follow, we conclude that the prosecutor's
questions and comments did not violate Doyle and, accordingly, that
Pitts's attorney was not deficient in failing to object to the
comments and to raise the Doyle issue on appeal. See Turner v.
Johnson, 106 F.3d 1178, 1187 (5th Cir.1997).
B.
In Doyle, the Supreme Court held that a prosecutor's use of
a defendant's post-arrest, post-Miranda silence for impeachment
violated due process. As subsequent cases have made clear, Doyle
forbids the government's exploitation of silence after the
government has helped induce that silence by informing a defendant
of his right to remain silent. Jenkins v. Anderson, 447 U.S. 231,
240, 100 S.Ct. 2124, 2130, 65 L.Ed.2d 86 (1980) (Pre-arrest silence
may be used for impeachment because "no governmental action induced
[the defendant] to remain silent before arrest"); Fletcher v.
Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490
(1982) (per curiam) (Post-arrest statements made before Miranda
warnings are given may be subject to prosecutorial comment).
In Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180,
8 2182, 65 L.Ed.2d 222 (1980) (per curiam), the Supreme Court
explained that when a defendant makes a post-Miranda statement that
is inconsistent with his testimony at trial, Doyle does not bar
impeachment based on the prior inconsistent statements. The Court
reasoned:
Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.
Id. (emphasis added).
However, Charles does not mean that anytime a defendant makes
a post-Miranda statement the prosecution has carte blanche to use
the defendant's silence to impeach him. See, e.g., United States
v. Laury, 985 F.2d 1293, 1303-04 (5th Cir.1993) ("That [the
defendant] did not remain completely silent following his arrest
did not give the prosecutor unbridled freedom to impeach [him] by
commenting on what he did not say following his arrest."). Where
prosecutorial comments are "designed to draw meaning from silence,"
Charles, 447 U.S. at 409, 100 S.Ct. at 2182, they remain subject to
the rule in Doyle. In other words, prosecutorial statements that
are either intended to or have the necessary effect of raising a
negative inference simply because of the defendant's exercise of
his right to remain silent are prohibited. However, where a
prosecutor's questions and comments are aimed at eliciting an
explanation for an arguably prior inconsistent statement, no Doyle
violation occurs. Id.
9 While this distinction may at times be subtle, see Smith v.
Cadagin, 902 F.2d 553, 557 (7th Cir.1990) ("Certainly there is a
fine line between impeachment by showing a curious incompleteness
in a suspect's story and impeachment from silence.") (quoting
Phelps v. Duckworth, 772 F.2d 1410, 1421 (7th Cir.1985) (en banc)
(Easterbrook, J., concurring)), evaluating the prosecutor's
comments in the context of the entire record resolves most cases.
As we have previously explained:
The alternative tests for determining whether a prosecutor's or witness's remarks constitute comment on a defendant's silence are whether the "manifest intent" was to comment on the defendant's silence or, alternatively, whether the character of the remark was such that the jury would "naturally and necessarily" construe it as a comment on the defendant's silence. Both the intent of the prosecutor and the character of the remarks are determined by reviewing the context in which they occur, and the burden of proving such intent is on the defendant.
United States v. Shaw, 701 F.2d 367, 381-82 (5th Cir.1983), cert.
denied, 465 U.S. 1067, 104 S.Ct. 1419, 79 L.Ed.2d 744 (1984)
(quoted in Laury, 985 F.2d at 1303).
Our Circuit has had few occasions to address the application
of Doyle to cases in which a defendant's post-arrest and trial
statements, while not impossible to reconcile, are arguably
inconsistent. In fact, only one opinion of this court, United
States v. Laury, is even analogous to the present scenario. In
Laury, the defendant was arrested for bank robbery. At the time of
his arrest and after being read his Miranda rights, Laury made a
statement to the police in which he admitted making numerous large
cash expenditures shortly after the date of the robbery but stated
that he obtained the money for the purchases from two jobs, his
10 girlfriend, and his girlfriend's grandmother. At trial, Laury
asserted for the first time, as did three alibi witnesses, that he
was out of town attending a cousin's birthday party on the date of
the robbery. On cross-examination and in closing argument, the
prosecutor made much of the fact that Laury had not included the
new alibi information in his original statement to the police. In
holding that the prosecutor's comments violated Doyle, we reasoned
that because Laury's testimony at trial dealt with subject
matter—his whereabouts at the time of the robbery—not addressed in
his post-arrest statement, "nothing [he] told the FBI agents was
inconsistent with his trial testimony that he was at a birthday
party on the date of the bank robbery." Id. at 1303. Because
there was no inconsistency, we viewed the prosecutor's remarks as
comments on Laury's post-arrest silence in violation of Doyle. Id.
at 1303-04.
While instructive, Laury does not control this case. Laury
establishes that where a defendant's testimony at trial deals with
subject matter not addressed in his post-arrest statement, there
can be no inconsistency between the statements and, therefore,
Charles is inapplicable. Stated differently, where a defendant's
testimony at trial does not deal with the same subject matter as
his pre-trial statement, a prosecutor's remarks on omissions in the
pre-trial statement is considered a plea for the jury to infer
guilt or other negative inferences from the defendant's exercise of
his Fifth Amendment rights. In essence, this is the necessary
corollary to the Supreme Court's pronouncement in Charles that
11 "[a]s to the subject matter of his statements, the defendant has
not remained silent at all." 447 U.S. at 408, 100 S.Ct. at 2182
(emphasis added).
In the present case, however, Pitts' post-arrest and trial
statements concerned the same subject matter—the events leading up
to the shooting. The question we must decide is whether Pitts's
statement post-arrest—the victim "come out on me with a gun"—is
sufficiently inconsistent with his trial testimony—Smithinger shook
the rifle and the shooting was accidental—to conclude that the
prosecutor's comments were designed and had the effect of
highlighting the arguable inconsistency, rather than commenting on
Pitts's exercise of his right to remain silent.
Most courts to address similar issues have held that where
post-arrest and trial statements involve the same subject matter
and where the post-arrest statement is sufficiently incomplete as
to be "arguably inconsistent," i.e. where the implications of the
statements, if not their language, suggests they may be
inconsistent, Charles applies and comment upon the omissions is
permitted.
For example, in Smith v. Cadagin, 902 F.2d 553 (7th Cir.1990),
the Seventh Circuit determined prosecutorial comment on a
defendant's omission in his post-arrest statement did not violate
Doyle. There, a defendant, charged with unlawful restraint and
intimidation arising from an incident in which he attempted to
force a woman to accompany him at gunpoint, made a post-arrest
statement that the situation "got out of hand." He then testified
12 for the first time at trial that his actions were meant as a
"practical joke." The prosecutor cross-examined the defendant and
commented during closing argument concerning his failure to tell
the police that his actions were meant as a practical joke. The
court reasoned that there was no Doyle violation because the
defendant "voluntarily commented upon his participation in the
incident and quite gratuitously characterized the event as one that
"got out of hand.' At trial, he returned to the same "subject
matter' ... and used another verbalization to characterize his
acts—a "practical joke.' " Id. at 559. Consequently, "[t]he
prosecutor's cross-examination was limited to the defendant's
earlier description of the encounter and was not ... an attempt to
exploit the defendant's silence—the gravamen of the error condemned
in Doyle." Id.
The Ninth Circuit reasoned similarly in United States v.
Makhlouta, 790 F.2d 1400 (9th Cir.1986). There, the court found no
Doyle error where a defendant stated post-arrest that he
distributed cocaine in part because he had not anticipated being
detected and at trial claimed for the first time that he had been
entrapped. Noting Charles's observation that " "[a]s to the
subject matter of his statements, the defendant has not remained
silent at all,' " the court concluded that both statements "address
the subject matter of why he sold heroin" and were arguably
inconsistent. Id. at 1404 (quoting Charles, 447 U.S. at 408, 100
S.Ct. 2182). The court further explained that "once a defendant
makes post-arrest statements that "may arguably be inconsistent
13 with the trial story,' he has raised a question of credibility.
The government, to provide all relevant evidence bearing on
credibility, "may probe all post-arrest statements and the
surrounding circumstances under which they were made, including
defendant's failure to provide critical details.' " Id. at 1404
(citations omitted).
Likewise, in United States v. Butler, 924 F.2d 1124
(D.C.Cir.), cert. denied, 502 U.S. 871, 112 S.Ct. 205, 116 L.Ed.2d
164 (1991), a defendant charged with possession with intent to
distribute cocaine made a post-arrest statement that he obtained
the drugs from a known dealer and that he was "just getting ready
to drop it off." At trial, he testified for the first time that,
in an effort to get even with the dealer, he took the drugs and was
heading to the police station to turn them in when he was arrested.
The D.C. Circuit allowed cross-examination on why the defendant did
not include that information in his original statement to police,
explaining that "[t]he prosecutor was entitled to examine
[defendant] regarding his ambiguous, if not inconsistent, statement
to [the officer]" and that defendant's "initial omission from his
explanation of the pivotal fact ... is simply not the kind of
"silence' protected under Doyle." Id. at 1129-30.
The Eighth Circuit adopted this same approach in United States
v. Schultz, 698 F.2d 365 (8th Cir.1983). There, a defendant
charged with attempted extortion admitted post-arrest to picking up
a package of money left by a bank manager who received a
threatening phone call and then testified at trial for the first
14 time that he was in the area to meet a friend. The court held that
the prosecutor's comments on the defendant's failure to mention the
reason for his presence—to meet a friend—in his post-arrest
statement did not violate Doyle. The court reasoned that "when
[defendant] chose to testify at trial, he was subject to
cross-examination with respect to his prior, arguably inconsistent
statement concerning the same subject matter." Id. at 367.
Similarly, in Grieco v. Hall, 641 F.2d 1029 (1st Cir.1981), a
defendant was arrested outside a vehicle that the police had been
chasing from the scene of a robbery. Defendant made a post-arrest
statement that he did not know the owner of the getaway vehicle and
that he was a hitchhiker. At trial, he testified that he was
merely urinating behind a building next to where the vehicle
stopped. The First Circuit allowed prosecutors to inquire into why
he didn't include that information in his post-arrest statement,
holding that "once a defendant makes post-arrest statements that
may arguably be inconsistent with the trial story, inquiry into
what was not said at arrest may be designed not "to draw meaning
from silence,' but to elicit an explanation for a prior
inconsistent statement." Id. at 1034 (quoting Charles, 447 U.S. at
409, 100 S.Ct. at 2182).
We agree with the near uniform approach of our sister
circuits and hold that where a defendant's post-arrest statement
addresses the same subject matter as his trial testimony and is
arguably inconsistent with that testimony, a prosecutor's questions
and comments designed to highlight the inconsistency do not violate
15 Doyle. Such questions are simply not designed to cause the jury to
infer guilt because of the defendant's exercise of his Fifth
Amendment rights. Rather they are intended to probe and explain
the defendant's post-arrest statement and the circumstances under
which it was made. Because a defendant has not remained silent as
to the subject matter of his post-arrest statements, Charles, 447
U.S. at 408, 100 S.Ct. at 2182 such questions do not use a
defendant's government-induced silence against him and, thus, do
not fall within the purview of Doyle5
Applying this standard to the present case, we conclude that
no Doyle error occurred. While Pitts's post-arrest statement that
the victim "come out on me with a gun" and his trial testimony that
Smithinger grabbed the gun and the shooting was an accident are not
necessarily inconsistent, they do concern the same subject matter
and their implications are arguably inconsistent: Pitts's
statement that the victim came out with a gun suggests the shooting
may have been in self-defense, while his trial testimony suggests
the shooting was accidental. Because the statements concern the
same subject matter and are arguably inconsistent, the prosecutor's
questions and comments regarding Pitts's failure to include facts
supporting the accidental nature of the shooting in his post-arrest
5 Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) is not to the contrary. The issue in Brecht was the standard for determining harmless error for a "Doyle " error on collateral review. The Supreme Court had no difficulty finding Doyle error because the petitioner made no statement after he was given his Miranda warnings and the prosecutor called this fact to the jury's attention. The court concluded, however, that the error was harmless because it did not "substantially influence" the jury's verdict.
16 statement do not violate Doyle. Pitts waived his right to remain
silent as to the subject matter of his post-arrest statement, and
the prosecutor's comments can fairly be described as designed to
highlight the arguable inconsistency between Pitts's statements,
rather than drawing some inference from his exercise of his Fifth
Amendment rights.
III.
Because the prosecutor's comments did not violate Doyle, Pitts
has failed to demonstrate ineffective assistance of counsel or
other cause for his failure to object to the prosecutor's comments
in a timely fashion. Accordingly, Pitts's application for federal
habeas relief is barred by the procedural default rule, and the
district court's judgment denying his habeas petition is AFFIRMED.
AFFIRMED.
DeMOSS, Circuit Judge, Specially Concurring:
I agree with the majority that we should affirm the judgment
of the district court which denied habeas relief. However, I agree
for reasons which are different from those expressed by the
majority.
In my view, this case is controlled by the Supreme Court's
decision in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123
L.Ed.2d 353 (1993), both as to whether a Doyle1 error occurred in
Pitts' trial, and as to whether the occurrence of such error
justified reversal of the state conviction on collateral review by
1 Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
17 the federal courts under habeas corpus.
The circumstances involved in the instant case and in Brecht
are strikingly similar. Both cases involve state prosecutions for
murder in which the defendant took the stand at trial and testified
as to circumstances which he claimed show that the shooting was
accidental. In both cases, the defendant more or less admitted
firing the fatal shots. In both cases, there was significant
testimony as to the defendants' actions (after the shooting, but
before arrest), which tended to contradict their respective claims
of accident. In both cases, on cross-examination, the prosecutor
asked the defendant whether he had told the arresting officer, or
anyone else, anything about the accidental circumstances which he
now claimed at trial. Additionally, in Pitts' case, the prosecutor
asked the arresting officer on direct examination whether Pitts had
spoken about accidental circumstances.
In holding that Doyle error did occur in Brecht, the Supreme
Court drew a distinction between proof of the defendant's conduct
and statements before the time he received his Miranda2 warnings,
and proof of the defendant's conduct and statements after he
received the Miranda warnings. The Supreme Court stated:
On the other hand, the State's references to petitioner's silence after that point in time [when the Miranda warnings were given] or more generally to petitioner's failure to come forward with his version of events at any time before trial ... crossed the Doyle line. For it is conceivable that, once petitioner has been given his Miranda warning, he decided to stand on his right to remain silent because he believed his silence would not be used against him at trial.
2 Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
18 Brecht, 113 S.Ct. at 1717 (internal reference omitted). In my
view, Brecht is on point. As in Brecht, the prosecutor in our case
was clearly attempting to show (during both his direct questioning
of the arresting officer and his cross-examination of Pitts) that,
following Pitts' arrest and his receipt of the Miranda warning,
Pitts did not speak about the very accidental circumstances of
which he chose to speak at trial. In my book, remaining silent and
not speaking are one and the same thing.
To circumvent Doyle and Brecht, the majority would fashion a
new rule premised upon an extension of the Supreme Court's holding
in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d
222 (1980) (holding that Doyle does not apply to cross-examination
that merely inquires into prior inconsistent statements). The
majority's new rule would extend the Charles holding to
circumstances when the Court can conclude that a defendant's trial
statements are "arguably inconsistent" with his prior statements.
For the following reasons, I cannot concur in this new rule:
a. Neither in Charles, nor in any later decision, has the Supreme Court recognized the concept of "arguable inconsistency."
b. Prior to this opinion, no case in the Fifth Circuit has recognized the concept of "arguable inconsistency" as a basis for applying the Charles exception to Doyle.
c. The decision of the Fifth Circuit in United States v. Laury, 985 F.2d 1293 (5th Cir.1993), clearly holds that actual inconsistency between a post-arrest statement and a trial statement is essential before the prosecutor can cross-examine the defendant in regard thereto. Laury, 985 F.2d at 1303 ("Therefore, nothing Laury told the FBI agents was inconsistent with his trial testimony that he was at a party on the date of the bank robbery. The prosecutor did not comment on what Laury told FBI agents, but on what he did not tell them.")
19 d. All of the cases from other Circuits upon which the majority relies for its concept of "arguable inconsistency" were decided before the decision of the Fifth Circuit in Laury. Tellingly, Laury does not cite any of the cases upon which the majority now seeks to rely for its new rule.
e. The Supreme Court's Brecht decision (April 1993) came after the Fifth Circuit's Laury decision (March 1993), and after all of the Circuit Court decisions cited by the majority in support of its "arguable inconsistency" rule.
f. The defendant in Brecht testified at trial as to circumstances which he claimed showed that the shooting was an accident. Yet, in deciding the case, the Supreme Court did not cite, or refer to, any of the Circuit Court decisions which articulate the "arguably inconsistent" theory, upon which the majority now relies. Brecht's testimony at trial was just as "arguably inconsistent" with his prior silence as was Pitts' testimony at trial with his prior silence.
g. The concept of "arguable inconsistency" is fraught with ambiguity and borders upon being an oxymoron3. For Statement A to be inconsistent with Statement B, all or some portion of Statement A must contradict all or some portion of Statement B. If Statement B speaks to a fact or condition not mentioned in Statement A, these two statements are not inconsistent as to that fact. The holding in Charles talks of "prior inconsistent statements" not of "prior inconsistent silence." The majority's new rule would, in effect, convert Pitts' silence into a statement.
Given Laury's controlling precedent in this Circuit, and the
total absence of any recognition of the concept of "arguable
inconsistency" by the Supreme Court, I cannot concur with the
majority opinion. I do not think it is the role of this panel to
create a new rule that results in a determination that there was no
Doyle error, particularly in a case which is before us on habeas
corpus collateral review.
Obviously, if I am right and there was Doyle error in this
3 A figure of speech in which antithetical incongruous terms are combined. Webster's II New Riverside University Dictionary (1984).
20 case, we must then address the holding for which Brecht is best
known and determine whether or not Pitts sustained his burden of
showing that the Doyle error committed by the prosecutor in his
state trial "had substantial and injurious affect or influence in
determining the jury's verdict." Brecht, 507 U.S. at 637, 113
S.Ct. at 1722. Upon reviewing the record as a whole, I conclude
that there is adequate admissible evidence upon which a reasonable
jury could find that the shooting was not an accident, as is
contended by Pitts.
First, and foremost, Pitts' testimony that his rifle fired
accidentally during a struggle with Pauline Smithinger (who grabbed
his rifle and attempted to take it away from him) is directly
contradicted by Smithinger's testimony. Smithinger testified that,
while she did grab the rifle, Pitts slung her away from it and the
shots came after she had turned loose of the rifle. The jury was
presented, therefore, with a credibility choice between the two
versions.
Furthermore, Pitts' actions after the shooting and before his
arrest (proof of which are clearly admissible under Brecht) could
reasonably lead the jury to conclude that the shooting was not an
accident. Pitts did not seek help, he did not summon the police
(although he had a CB radio in his truck), and he did not wait at
the scene. Instead, he went back to his camp and hid the rifle
which had fired the shot, which caused the wound that caused the
victim to bleed to death.
Consequently, I conclude that the Doyle error which did occur
21 at Pitts' trial "did not substantially influence the jury's
verdict" so as to entitle Pitts to relief. This is the same
conclusion which the trial court reached in denying Pitts any
habeas corpus relief, and I would affirm on this same basis.