United States ex rel. Allen v. Franzen

659 F.2d 745

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 27, 1981
• Docket: No. 78-2140
• Status: Published

Opinions

SWYGERT, Senior Circuit Judge.

Petitioner Eddie Allen was convicted of murder in a jury trial in Peoria County, Illinois, and was sentenced to a prison term of eighteen to fifty years. The conviction was affirmed by the Illinois Appellate Court, Third Judicial District, People v. Allen, 37 Ill.App.3d 619, 346 N.E.2d 486 (1976). The Illinois Supreme Court denied Allen leave to appeal, and the United States Supreme Court denied his petition for writ of certiorari, Allen v. Illinois, 430 U.S. 956, 97 S.Ct. 1603, 51 L.Ed.2d 806 (1977).

On February 8, 1978, Allen filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Illinois. The court granted the habeas petition, vacated petitioner’s conviction, and allowed the State ninety days to retry or release him. The State appealed on August 16, 1978; the district court stayed its order pending the appeal. We affirmed the decision of the district court, United States ex rel. Allen v. Rowe, 591 F.2d 391 (7th Cir. 1979), vacated sub nom. Franzen v. Allen, 447 U.S. 917, 100 S.Ct. 3006, 65 L.Ed.2d 1110 (1980). The Supreme Court vacated our judgment and remanded the case to us for further consideration in light of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Under our Circuit Rule 19, the parties have briefed the issue that is before this court on remand: whether the prosecutor’s cross-examination of a criminal defendant about his failure to tell his exculpatory story to police upon his arrest constituted reversible error. We conclude that, in the circumstances of this case, the prosecution’s attempt to impeach petitioner’s testimony by his silence was unconstitutional, and accordingly, we affirm the judgment of the district court.

I

Petitioner shot and killed his wife on January 3, 1974. Officer Terry Melloy of the Peoria Police Department was sent to investigate following Allen’s call to the police. When asked by Melloy what happened, Allen replied, “I shot my wife.” Allen then told Melloy that the gun was on the table inside the house, and that Mrs. Allen was hurt “pretty bad.” Officer Melloy read Allen the Miranda warnings, which included the statement that “anything you say can and will be used against you in a court of law.” Petitioner acknowledged that he understood his rights and made no further statements.

At trial, Allen contended that he had acted in self-defense. The prosecutor, over the objections of defense counsel, cross-examined Allen about his failure to tell his story to the police:

“Q: Would you explain that information you gave to Officer Terry Melloy concerning your fears for your life and efforts of self defense when he came up to the house after you called?”

The trial judge sustained defense counsel’s objection to this question and instructed the jury to disregard it.

“Q: Now, Mr. Allen, when the police showed up pursuant to your call on January 3, 1974, at 431 West 7th in Peoria, and you talked to Officer Melloy, you never mentioned any fear for your life did you?

DEFENSE COUNSEL: Same Objection.

THE COURT: Overruled.

A: Would you repeat the question?

Q: When the police showed up at 431 West 7th on January 3, 1974 pursuant to your call, you never told them you were in fear oí your life from your wife did you?

A: No.

Q: In fact, you never told any law enforcement officer this did you?

A: No, I didn’t.

Q: In fact, the first statements regarding this are from the stand in this trial aren’t they?”

Out of the presence of the jury, defense counsel objected to this line of questioning on the ground that it was improper for the prosecutor to question defendant about his refusal to make a statement, and asked the court to declare a mistrial. The court overruled the objection and denied the motion for a mistrial.

“Q: Would you repeat the question?

COURT REPORTER: In fact, the first statements regarding this are from the stand in this trial aren’t they?

A: Yes.”

The prosecutor also commented on Allen’s silence during closing arguments to the jury:

Now, when by the way, did the defendant first say self-defense? Did he say this to officer Terry Melloy, I just shot my wife, I had to do it, she came at me with a knife in the kitchen! Did he say that? Did he say, she was going into her purse, I thought she had a gun, I had to shoot her! Or did he even say, I shot my wife in self-defense. No, none of these. He said very calmly, according to Officer Melloy, I just shot my wife, she is pretty bad, she is in there, the gun is on the table. In a calm way.

******

After he shot his wife five times and stood over her and sent the hammer home on an empty cylinder, did he then say, oh my God, I had to do it, I thought she was going for a gun. No, what he said was, she’s dead now. The defendant could not say self-defense because there was no self-defense. The defendant is a cold blooded, brutal murderer.

At trial, conflicting evidence was presented on the question of self-defense. Petitioner testified that on the day of the shooting, Mrs. Allen got a butcher knife and a struggle ensued. He also alleged that just before he pulled out his gun and shot her, she had reached into her purse and started to get up; he stated that he thought she was trying to kill him. Mrs. Moore, who was in the house at the time of the shooting, testified that Mrs. Allen did not have her purse in the room at the time of the shooting.

Other testimony presented at trial indicated that Allen and his wife had previously made death threats against each other. Two witnesses testified that several days before the shooting, Mrs. Allen attacked her husband with a steak knife then a bottle.

II

Petitioner contends that the prosecution’s attempt to impeach his testimony by his prior silence violated the Fourteenth Amendment; he relies principally on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The State asserts that the Supreme Court’s decision in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), controls this case.

A. Post-Arrest Silence

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), petitioners at their trial told an exculpatory story they had not told before to the police or prosecutor. On cross-examination, the prosecutor questioned them about their failure to give the explanation to police at the time of their arrest. The Court held that the use of petitioner’s post-arrest silence for impeachment purposes violated the Due Process Clause of the Fourteenth Amendment. Id. at 619, 96 S.Ct. at 2245. The Court stated:

Silence in the wake of these [Miranda] warnings may be nothing more than the arrestee’s exercise of these . . . rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. .. . Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Id. at 617-18, 96 S.Ct. at 2244-45.

The district court found, and we agree, that the prosecutor’s questions during cross-examination and remarks in closing arguments violated petitioner’s due process rights. The State may not use a criminal defendant’s silence after he has been given the Miranda warnings to impeach an exculpatory story brought forth later. To permit such a practice would be fundamentally unfair, as the Supreme Court found in Doyle, and would be too great a burden on a criminal defendant’s exercise of his right to remain silent. Moreover, we agree with the district court that petitioner’s silence was not necessarily inconsistent with his claim of self-defense. See United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975).¹

B. Pre-Arrest Silence

In Jenkins, petitioner testified at his trial for murder that he acted in self-defense. He was not arrested until two weeks after the slaying. The prosecutor cross-examined petitioner about his silence during the period before his arrest, attempting to impeach his testimony by showing that he would have spoken up sooner if he had in fact acted in self-defense. The Supreme Court held that the use of pre-arrest silence to impeach a criminal defendant’s credibility does not violate the Fifth or Fourteenth Amendments. 447 U.S. at 238, 240, 100 S.Ct. at 2129, 2130.

We find that Jenkins does control the pre-arrest silence issue; if the prosecutor’s questions on cross-examination and remarks in closing arguments had referred only to petitioner’s silence prior to receiving his Miranda warnings, we would have been bound by Jenkins to conclude that no constitutional violation occurred. In the case at bar, however, the prosecutor’s remarks were phrased broadly, without distinguishing between pre- and post-arrest silence.² Therefore, the fact that the questions may have permissibly referred in part to the pre-arrest silence does not alter the conclusion that the references to post-arrest silence were unconstitutional.

Ill

The State argues that despite the fact that the prosecutor’s questions referred impermissibly to post-arrest silence, we should affirm the conviction because the error was harmless. We cannot agree.

A constitutional error will not be found harmless unless the court determines that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).³ “[U]nless there is a reasonable probability that the improperly admitted [questions] contributed to the conviction, reversal is not required.” Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972).

In the case at bar, it is possible that a juror might have considered the prosecutor’s remarks about petitioner’s silence in rejecting his self-defense claim. Further, petitioner’s assertion of self-defense was not frivolous; he presented other witnesses who testified about prior attacks and threats against petitioner by his wife. Therefore, we cannot conclude that the error was harmless beyond a reasonable doubt.⁴

Accordingly, we affirm the decision of the district court.

1 . The Court in Hale, although basing its decision on its supervisory power over federal courts rather than on constitutional grounds, noted that “[i]n most circumstances, silence is so ambiguous that it is of little probative force.” 422 U.S. at 176, 95 S.Ct. at 2136. The Court found that the respondent in that case had been given the Miranda warnings and that, therefore, “his failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication.” Id. at 177, 95 S.Ct. at 2137.

2 . In its brief, the State concedes that “the prosecutor in cross-examining the defendant did not always phrase his questions concerning defendant’s failure to tell his self-defense story in such a way that they clearly referred only to the period before his arrest .... Yet this should not be fatal to the defendant’s conviction because the prosecutor was clearly adverting to the defendant’s state of mind before his arrest . . . . ” We disagree; it is clear from the questions that the prosecutor was referring to both petitioner’s pre- and post-arrest silence.

3 . The Court in Doyle did not consider whether the error in that case was harmless because the State failed to raise the issue. 426 U.S. at 619-20, 96 S.Ct. at 2245.

4 . We note further that the district judge, who heard the testimony and closing arguments, ruled that the error was not harmless.