United States of America Ex Rel. Charles "Chuck" Miller v. James Greer, Warden, Menard Correctional Center

789 F.2d 438, 1986 U.S. App. LEXIS 24541

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 9, 1986
• Docket: 84-2679
• Status: Published

Opinions

FLAUM, Circuit Judge, with whom BAUER, CUDAHY, POSNER, and RIPPLE, Circuit Judges,

join.

Petitioner Charles Miller appeals the district court’s denial of his petition for writ of habeas corpus, contending that his constitutional rights were violated when the prosecutor improperly commented on his post-arrest silence during his trial in state court for murder, kidnapping, and robbery. This court reversed the district court in a panel opinion issued August 27, 1985. Rehearing en banc was granted on November 14, 1985 and the original decision vacated. We reverse the district court’s denial of the writ.

I.

This case involves the brutal kidnapping, murder, and robbery of Neil Gorsuch during the early morning hours of February 9, 1980, in Morgan County, Illinois. Miller was indicted for the crimes on February 11, 1980, along with Clarence Armstrong and Randy Williams. Williams entered into a plea agreement with the state whereby the murder, aggravated kidnapping, and robbery charges against him were dropped in exchange for his guilty plea to one count of kidnapping and his testimony in the separate trials of Miller and Armstrong.

Randy Williams testified at trial as follows: he, his brother Rick, and Armstrong met Gorsuch in a tavern on the evening of February 8. The four men left together at about 1:30 a.m. the following morning, Armstrong having offered to give Gorsuch a ride back to his motel. After taking Rick home, Williams started driving to Gor-such’s motel. En route, Armstrong began beating Gorsuch in the back seat. Armstrong then told Williams to drive to Williams’s house, where Armstrong again beat Gorsuch and got Williams’s twelve-gauge shotgun out of the bedroom. The three men then got back into the car and drove to the trailer home where Miller was staying. While Williams and Gorsuch waited in the car, Armstrong went in and talked briefly to Miller. Armstrong and Miller then left the trailer and got into the car. Williams drove to a bridge in an isolated rural area, where Armstrong removed Gorsuch from the car and stood him up against the bridge railing. Williams, Armstrong, and Miller then each shot Gorsuch once in the head with the shotgun, and Armstrong pushed the body over the railing into the creek below.

Charles Miller testified that Armstrong came to his trailer in the early morning hours of February 9 and said that he needed to talk to Miller because he and Williams had killed somebody. Miller went with Armstrong to Williams’s house and talked to the two men for awhile. He and Williams then took Armstrong home and had breakfast at Dottie’s Cafe, which was run by Williams’s mother. After breakfast, Miller returned to the trailer. He and Williams were arrested that night at a gas station on their way home from a party.

Other witnesses testified that Gorsuch left the tavern on the morning of February 9 in the company of the two Williams brothers and Armstrong. The people in the trailer where Miller was staying that night testified that Armstrong arrived at the trailer during the early morning hours of February 9 (estimates varied from 4:15 a.m. to 6:30 a.m.) and left with Miller after a short conversation. Williams’s mother testified that Williams and Miller arrived at her cafe for breakfast at approximately 6:15 a.m. Shotgun shells, other evidence found near the bridge, and the autopsy reports indicated that the murder had taken place essentially as Williams described.

After Miller testified, the prosecutor began his cross-examination by asking:

Prosecutor: Mr. Miller, how old are you?

Defendant: Twenty-three.

Prosecutor: Why didn’t you tell this story to anybody when you got arrested?

Defense counsel immediately objected and, out of the presence of the jury, asked for a mistrial. The judge denied the motion and instructed the jury to “ignore that last question for the time being.” The judge did not further instruct the jury on the prosecutor’s reference to Miller’s post-arrest silence.

The jury found Miller guilty of robbery, kidnapping, aggravated kidnapping, and murder. He was found not guilty of armed robbery. Miller was sentenced to concurrent terms of eighty years for murder, thirty years for aggravated kidnapping, and seven years for robbery.¹

On direct appeal, a unanimous panel of the Illinois Appellate Court reversed Miller’s conviction and remanded for a new trial. People v. Miller, 104 Ill.App.3d 57, 59 Ill.Dec. 864, 432 N.E.2d 650 (1982). The appellate court held that the prosecutor’s reference to Miller’s post-arrest silence directly violated Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and that the trial court’s attempt to cure the error was insufficient. 104 Ill.App.3d at 61, 59 Ill.Dec. at 867-68, 432 N.E.2d at 653-54. The appellate court found that the evidence against Miller was not overwhelming:

[Tjhere is corroboration for the testimony of the accomplice, Randy Williams. However, nothing except Williams’ testimony directly links Miller with the crimes.

The trial was essentially a credibility contest between defendant Miller and Randy Williams. The reference to post-arrest silence cast aspersions on Miller’s credibility and may have irreparably prejudiced him in the eyes of the jury. Thus, reversal is required.

Id. at 61, 59 Ill.Dec. at 868, 432 N.E.2d at 654.

The Illinois Supreme Court granted leave to appeal and reversed the appellate court’s decision. People v. Miller, 96 Ill.2d 385, 70 Ill.Dec. 879, 450 N.E.2d 322 (1983). The majority held that although the prosecutor’s comment violated Doyle, the error was harmless because the comment was a single, isolated reference during the course of a lengthy trial, because Randy Williams s testimony was corroborated in many respects, and because the jury was instructed to disregard the comment. Id. at 396, 70 Ill.Dec. at 884, 450 N.E.2d at 327. In dissent, Justice Simon pointed out that accomplice testimony is inherently unreliable and that the judge’s allegedly curative instruction was insufficient. Id. at 397-99, 70 Ill.Dec. at 885-86, 450 N.E.2d at 328-29.

Charles Miller filed a petition for a writ of habeas corpus in the United States District Court on August 22,1983, pursuant to 28 U.S.C. § 2254 (1982). On August 27, 1984, the district court entered an order granting the state’s motion for summary judgment and denying the petition for the writ. United States ex rel. Miller v. Greer, No. 83-3254 (C.D. Ill. Aug. 27, 1984). The district court essentially adopted the Illinois Supreme Court’s analysis, holding that the state’s violation of Doyle was harmless beyond a reasonable doubt.

II.

The Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), that “the use for impeachment purposes of [a] petitioner's] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment.” Id. at 619, 96 S.Ct. at 2245. The state’s first argument in response to Miller’s appeal is that, despite the fact that the Illinois Appellate Court, the Illinois Supreme Court, the United States District Court, and this court’s original panel all held otherwise, there was no Doyle violation in this case.

Charles Miller was not given Miranda warnings when he and Williams were arrested at a gas station in the early morning hours of February 10, 1980, for unlawful use of weapons (a handgun was found under the seat of the car that they were driving). Later that day, Williams gave a formal statement to the police implicating himself, Armstrong, and Miller in Gor-such’s murder. Immediately following Williams’s statement, at 2:57 p.m., Miller was given Miranda warnings and arrested for the murder, kidnapping, and robbery of Neil Gorsuch.

The state concedes that Miller was given Miranda warnings at the time of his arrest for the instant offenses and that any comment referring to his silence after that arrest would be improper. It nevertheless argues that the prosecutor’s reference to Miller’s post-arrest silence could be construed as referring to the period between Miller’s arrest on the weapons charge, when no Miranda warnings were given, and his arrest on the murder charge and receipt of Miranda warnings later that afternoon, and that the prosecutor’s comment therefore did not violate Miller’s due process rights. See Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982) (not improper to comment on post-arrest silence in the absence of Miranda warnings, which affirmatively assure a defendant that he has the right to remain silent); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (same). The state asserts that it would have been natural for Miller to have attempted to exculpate himself from any involvement in the Gorsuch murder during the period following his initial arrest because he was arrested with Williams and knew of Williams’s involvement in the crime.

We cannot agree with the respondent’s contentions. Although the prosecutor’s question may have been intended to refer in part to Miller’s silence following his arrest on the weapons charge, it cannot seriously be maintained that the prosecutor intended no reference to Miller’s silence after his arrest for Neil Gorsuch’s murder. From the jury’s standpoint, the only reasonable inference to be drawn from the prosecutor’s question — “Why didn’t you tell this story to anybody when you got arrested?” — is that Miller was silent at the time of his arrest for the offenses for which he was then on trial.

The respondent asserts that it would have been “natural” for Miller to attempt to exculpate himself when he was arrested on the weapons charge merely because he was with Randy Williams. Although Williams may already have been a suspect in the murder because he had been seen leaving the tavern with Gorsuch, Miller was never even implicated in the crime until Williams gave his formal statement to the police later that day. It is not in the least bit “natural” for a person to try to exculpate himself of a crime of which he has not been accused. Indeed, the statement — “I did not kill anybody” — upon being arrested for unlawful use of weapons, drunken driving, or running a red light, would tend only to inculpate, rather than exculpate, the ar-restee.

We conclude, as did the courts before us, that Miller was advised of his right to remain silent for purposes of Doyle when he was given the Miranda warnings at the time of his arrest for the offenses charged at trial. See People v. Miller, 96 Ill.2d at 394, 70 Ill.Dec. at 883, 450 N.E.2d at 326. The prosecutor’s reference to Miller’s silence at the time of his arrest therefore violated his constitutional right to a fair trial. Id.

III.

The conclusion that there was a Doyle violation in this case does not end the inquiry, however, since constitutional trial errors of this sort can in certain circumstances constitute harmless error. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Supreme Court has imposed on the government the burden of proving “beyond a reasonable doubt that the [constitutional] error complained of did not contribute to the verdict obtained.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. The circuits universally apply this “harmless beyond a reasonable doubt” standard to Doyle violations. See, e.g., United States v. Elkins, 774 F.2d 530, 539 (1st Cir.1985); Hawkins v. LeFevre, 758 F.2d 866, 877 (2d Cir.1985); United States v. Cummiskey, 728 F.2d (3d Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1869, 85 L.Ed.2d 162 (1985); Williams v. Zahradnick, 632 F.2d 353, 360 (4th Cir.1980); Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977); Martin v. Foltz, 773 F.2d 711, 715 (6th Cir.1985); United States v. Disbrow, 768 F.2d 976, 980 (8th Cir. 1985); United States v. Ortiz, 776 F.2d 864, 865 (9th Cir.1985); United States v. Remigio, 767 F.2d 730, 735 (10th Cir.1985); United States v. Ruz-Salazar, 764 F.2d 1433, 1437 (11th Cir.1985).

This circuit is no exception, see, e.g., United States v. Shue, 766 F.2d 1122, 1133 (7th Cir.1985) (Wood, J.). In this circuit alone, however, the possibility has been raised that a less stringent harmless error standard may be appropriate to Doyle situations. Concurring opinions to our en banc decision in Phelps v. Duckworth addressed the issue, although the majority there expressly declined to reach it. 722 F.2d 1410, 1414 (7th Cir.1985). Moreover, the state pressed this position during oral argument in this case, as does Judge East-erbrook in his dissent. Proponents of the lesser standard make several arguments. First, they urge that the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), adopted a two-level harmless error standard: the Chapman standard for direct violations of rights specifically enumerated in the Bill of Rights, and a standard requiring the defendant to demonstrate that the violation had a substantial influence on the trial for fourteenth amendment violations. As a variant of this position, it has been suggested that the latter standard is applicable because Doyle is not an innocence-protecting rule but, rather, a prophylactic rule designed only to buttress Miranda, another prophylactic doctrine. A third variant argues that, no matter what the standard applied to direct appeals of Doyle violations, constitutional rules are enforced less strictly on habeas corpus review.

Analysis of these arguments is aided by the Supreme Court’s recent pronouncement in Wainwright v. Greenfield, — U.S. —, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). There, in its review of a habeas petition, the Court affirmed the Eleventh Circuit’s decision that Doyle is violated when a prosecutor uses post-Miranda warnings silence as evidence of sanity. Although the harmless error issue was not before the Court, Greenfield is particularly notable for its strong affirmation of Doyle’s constitutional underpinnings and for the twice-mentioned assumption in Justice Rehnquist’s concurrence that the Chapman standard applies to habeas review of Doyle violations. See Rehnquist, J., concurring (joined by Burger, C.J.). Guided by this and other precedent discussed below, we conclude that the “harmless beyond a reasonable doubt” standard remains the law to which we must adhere, and that the state’s position and its variants are misguided.

First, a careful reading of Donnelly and other cases reveals that the Supreme Court does not vary the harmless error standard with the kind of constitutional right at issue. Rather, the Court prescribes one standard — the Chapman standard — for determining harmlessness in the context of constitutional trial error and another standard for determining whether ordinarily nonconstitutional trial error, for example, prosecutorial misconduct, is so prejudicial as to rise to the level of a due process violation.² Once the trial error has been identified as one of constitutional magnitude, then the Chapman standard is applied to determine whether the conviction must be reversed. For a recent explanation of this distinction, see United States v. Mazzone, 782 F.2d 757, 763 (7th Cir.1986) (Posner, J.). See also United States v. Young, — U.S.-, 105 S.Ct. 1038, 1045 n.10, 84 L.Ed.2d 1 (1985).

Donnelly itself made clear this scheme, explaining that the habeas petitioner there could point to nothing in his trial that specifically violated the constitution, such as prosecutorial comments on his right to remain silent. 416 U.S. at 643, 94 S.Ct. at 1871. Instead, the petitioner complained of the prosecutor’s expression of personal opinion as to guilt, an error that would not implicate the petitioner’s fourteenth amendment right to due process unless it actually “infected the trial with unfairness.” Id. Thus, the petitioner has an uphill battle when he seeks to establish general trial error as constitutional error. But where the violation at trial is one of constitutional magnitude, then the government bears the “more onerous” burden of Chapman. See United States v. Lane, — U.S. —, 106 S.Ct. 725, 730 n.9, 88 L.Ed.2d 814 (1986) (Burger, C.J.) (“the standard for harmless-error analysis adopted in Chapman concerning constitutional errors is considerably more onerous than the standard for nonconstitutional errors adopted in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)”). In United States v. Bagley, the Court was urged to reverse automatically or apply the Chapman standard to the government’s failure to disclose impeachment material to the defendant. — U.S. —, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The Court explained that a threshold inquiry first had to be undertaken to determine whether the nondisclosure amounted to a constitutional violation: “such suppression of. evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial.” 105 S.Ct. at 3381. Justice Marshall argued in dissent that any suppression of impeachment evidence should be considered constitutional error and thus urged the Court to “apply our normal constitutional error test and reverse unless it is clear beyond a reasonable doubt that the withheld evidence would not have affected the outcome of the trial.” 105 S.Ct. at 3394-95 (Marshall, J.). The express underpinning of Bagley was United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976): “to reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.”

Thus, the Court to date never has differentiated for harmless error standard purposes between Bill of Rights and fourteenth amendment violations,³ or between Doyle and other constitutional trial violations, or between direct and collateral review of constitutional violations. Indeed, the Court continues to manifest its complete adherence to a unitary standard of harmless error for constitutional trial violations. For example, the Court recently reaffirmed the constitutional/nonconstitu-tional distinction and the viability of Chapman as the analysis for constitutional trial errors, see the language from Lane, supra p. 9. Regarding Doyle specifically, its constitutional importance was reiterated by the Court in Greenfield. That opinion makes clear that Doyle is not of “secondary” constitutional status and is not merely a rule designed to increase adherence to Miranda. Instead, the court emphasized that drawing attention to post-Miranda warnings silence is fundamentally unfair and constitutes a direct, wholly independent violation of the due process clause of the fourteenth amendment.⁴ 106 S.Ct. at 638-39. See, e.g., South Dakota v. Neville, 459 U.S. 553, 565, 103 S.Ct. 916, 923, 74 L.Ed.2d 748 (1983); Fletcher v. Weir, 455 U.S. 603, 604-05, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982).

Finally, Justice Rehnquist’s assumption in Greenfield that the Chapman standard would apply there, 106 S.Ct. at 641, 644, is an additional entry in a long list of evidence that leads to the conclusion that Chapman is the law for Doyle violations in the context of habeas review. Although Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precluded collateral review of exclusionary rule claims litigated in state proceedings, we can find nothing to indicate that where collateral review is permitted, the Court has prescribed a different standard for determining harmlessness.⁵ The Stone doctrine, moreover, depends on the peculiar nature of the exclusionary rule as a “judicially created remedy rather than a personal constitutional right,” 428 U.S. at 495 n.37, 96 S.Ct. at 3052 n. 37. In an exclusionary rule situation, the constitutional violation occurs pre-trial and the rule operates to discourage law enforcement officials from future infidelity to the constitutional strictures. Id. at 492, 96 S.Ct. at 3051. Thus, the Court reasonably could conduct a cost/benefit analysis and conclude that collateral review there is unnecessarily costly, since there is no “reason to assume that any specific disincentive already created by the risk of exclusion of evidence at trial or the reversal of convictions on direct review would be enhanced if there were the further risk” of overturning convictions in federal habeas proceedings. Id. at 493, 96 S.Ct. at 3052. By contrast, the violation at issue in a Doyle situation is constitutional and personal to the petitioner. It occurs when the post-warnings silence is used at trial, and it offends due process. It denies the petitioner a fair trial, unless, and only unless, it can be said that the petitioner beyond reasonable doubt would have been convicted in the absence of the violation. Unless we are to conduct our own cost/benefit analysis and declare habeas relief from constitutional violations a thing of the past, this inquiry remains our responsibility. Accordingly, the Doyle violation must be examined in the context of petitioner Miller’s trial in order to determine whether it was harmless beyond a reasonable doubt.

IV.

The Illinois Supreme Court based its conclusion that the prosecutor’s improper comment was harmless error on three factors: the comment was a single, isolated reference during the course of a lengthy trial, Williams’s testimony was corroborated in many respects, and the trial judge gave a curative instruction. We cannot agree with the Illinois Supreme Court’s reliance on these factors. Beginning with the court’s observation that the prosecutor’s improper comment was but a single, isolated reference to Miller’s post-arrest silence during the course of a week-long trial, we believe that the timing of the comment overshadows its singularity. No matter how many days a trial may have lasted or how many witnesses may have appeared, the jury will pay close attention when a defendant accused of crimes as horrible as these takes the stand. That attention undoubtedly is heightened when the prosecutor rises to attack the defendant’s story on cross-examination. When one of the first questions from the prosecutor is “Why didn’t you tell this story to anybody when you got arrested?”, the comment cannot be so easily dismissed as a single, isolated reference.

Turning to the corroboration of Randy Williams’s testimony, the bulk of the testimony and physical evidence cited by the Illinois Supreme Court corroborated portions of Randy Williams’s testimony that Miller did not even dispute: (1) that Williams, his brother Rick, Armstrong, and Gorsuch left the tavern together at approximately 1:30 a.m. on the morning of February 9; (2) that Gorsuch was beaten and then killed on the bridge by several shotgun blasts to the head; (3) that Armstrong went to the trailer where Miller was staying sometime that morning, talked to him briefly, and then left with him; and (4) that Williams and Miller had breakfast together near daybreak that morning at Dottie’s Cafe.

With regard to the crucial part of Williams’s testimony — his assertion that Miller took part in the murder of Neil Gorsuch — there was no direct corroborative evidence⁶ and Miller denied being present when the murder was committed. There was no reason to find Miller’s testimony particularly incredible or Randy Williams’s testimony particularly credible on this point, especially since accomplice testimony of this kind is inherently unreliable, often motivated by factors such as malice toward the accused and a promise of leniency or immunity.⁷ In short, this evidence does not approach the overwhelming evidence necessary to overcome constitutional error such as a Doyle violation. Compare United States v. Hasting, 461 U.S. 499, 511-12, 103 S.Ct. 1974, 1981-82, 76 L.Ed.2d 96 (1983) (finding harmless error where victims promptly picked the defendants out of a line-up, neutral witnesses corroborated critical aspects of the victims’ testimony, property of the victims was found in one of the defendant’s possession, and there was identification of the car used and one of the defendant’s fingerprints); Feela v. Israel, 727 F.2d 151, 157 (7th Cir.1984) (finding harmless error where defendant had an implausible alibi and was arrested near the scene of the robbery with the vest, gloves, and handgun used by the robber); United States v. Wilkins, 659 F.2d 769, 774 (7th Cir.) (finding harmless error where defendant was arrested in the getaway car with the stolen money and guns several blocks from the bank), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981). The crux of this trial was whether the jury believed the Williamses or believed Miller. The prosecutor’s improper inquiry, magnified by coming at a time when the jury’s attention was focused on Miller, cast substantial doubt on Miller’s credibility. We simply cannot assume beyond a reasonable doubt that the prosecutor’s comment had no effect on the jury’s assessment of Miller’s credibility, and hence on the jury’s verdict. See, e.g., Velarde v. Shulsen, 757 F.2d 1093, 1095 (10th Cir.1985) (where case comes down to the word of defendant against the word of key prosecution witness, Doyle violation can never be harmless); United States v. Harp, 536 F.2d 601, 603 (5th Cir.1976) (where Doyle-violative remark strikes at the “jugular” of defendant’s story, error cannot be classified as harmless).

Finally, in regard to the allegedly curative instruction given by the trial judge, we believe that the judge’s admonition to ignore the prosecutor’s reference to Miller’s post-arrest silence “for the time being” was simply too ambiguous in the setting of a clear-cut Doyle violation to cure the effect of the prosecutor’s improper comment. The record reflects that the judge was apparently unaware that the prosecutor’s question was a violation of Doyle. At the side bar conference following defense counsel’s objection to the prosecutor’s comment, the judge stated: “I will do some checking during the time he is on the witness stand on Cross Examination and if I find where he can, I will let him ask the question.” Thus, the instruction that the judge gave to the jury reflected what he apparently was thinking at the time, which was that the jury might be able to consider the prosecutor’s comment and the implications arising therefrom at some point in the future. Because of the important fourteenth amendment guarantees protected by Doyle, we hesitate to hold that anything other than a clear, immediate, and unambiguous cautionary instruction can be sufficient to cure a Doyle violation. See United States ex rel. Burke v. Greer, 756 F.2d 1295, 1303 (7th Cir.1985) (final jury instructions ordinarily not sufficient to cure constitutional errors). Even if we were willing to consider a flawed cautionary instruction sufficient under certain circumstances, we could not conclude that the Doyle violation in the circumstances of this case was rendered harmless by the trial judge’s obscure instruction.

In sum, we hold that the state has not met its burden of proving that the prosecutor’s clear violation of Doyle was harmless beyond a reasonable doubt. In reaching this conclusion, we are not unmindful of the appropriateness of deferring to the state courts’ assessment of the impact of prosecutorial error on state trials. However, we are respectfully unable to accept the Illinois Supreme Court’s analysis in this case, although our conclusions track closely those of the unanimous Illinois Appellate Court. Because the crucial issue at trial was credibility, the Doyle violation went to the heart of the truth-seeking process. The evidence against Miller was not overwhelming, his story was not implausible, and the trial court's cautionary instruction was insufficient to cure the error. In these circumstances, we must conclude that it is not clear beyond a reasonable doubt that, absent the prosecutor’s improper comment, the jury would have found Miller guilty of the crimes for which he was convicted.

V.

The district court’s judgment denying a petition for a writ of habeas corpus is accordingly reversed, and the matter remanded with instructions to order Miller’s release from custody unless the state retries him within the 120-day time limit.

1 . The trial court vacated Miller’s kidnapping conviction because kidnapping is a lesser-in-eluded offense of aggravated kidnapping.

2 . There may also be a different approach to constitutional errors that do not affect trials. The Supreme Court in Morris v. Mathews, — U.S. —, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986), held that in the double jeopardy context, once a jeopardy-barred conviction is removed and a lesser-included offense conviction substituted, the defendant bears the burden of demonstrating that the jury would not have convicted him of the lesser-included offense. The majority in Morris stressed the distinction between double jeopardy cases and cases involving constitutional trial errors, stating that "this [Morris ] is not a 'harmless error’ case.” Id. at 1037. Thus, the Morris approach does not pertain to our analysis.

3 . In any event, it may be inappropriate to do so since all Bill of Rights provisions are enforced against the states as fourteenth amendment rights.

4 . It may taint the truth-seeking process as well. Silence after a state authority has promised that any statement one makes may be used at trial surely has questionable probative value. The Supreme Court suggested as much in United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99 (1975), and the difference in probative value between post-warnings silence and silence without warnings formed part of the Court’s rationale in Fletcher v. Weir for holding that only post-warnings silence implicates Doyle. 455 U.S. 603, 604-06, 102 S.Ct. at 1310-11 (1982).

5 . Any confusion on this point may be engendered by a possible misreading of Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). In Henderson, the Court reversed a grant of the writ because it found that the petitioner’s due process rights had not been violated by deficient jury instructions. The Court noted that the petitioner’s burden in making a collateral attack on constitutionality was greater than in seeking direct review, because the question on direct review in the state court was merely whether the instruction was “undesirable, erroneous, or even universally condemned.” Id. at 154, 97 S.Ct. at 1737.

6 . Rick Williams testified that on the evening following Gorsuch’s murder, Randy Williams and Miller told Rick that they had killed Gor-such and that Rick should keep quiet about it if the police began asking questions. Miller denied being present when this conversation took place. At most, this testimony provides indirect evidence that Miller was involved in the murder. Moreover, Rick Williams knew at the time of his testimony that his brother Randy had been promised leniency in exchange for testifying at trial. Thus Rick’s credibility is questionable, since his testimony in no way endangered his brother and in fact may have been helpful in making Randy’s version of the murder more attractive to the state.

7 . Counsel for the state represented during oral argument that the state had agreed prior to Miller’s trial to drop all charges against Williams except for kidnapping, in return for his testimony. After Miller’s conviction, Williams was sentenced on the kidnapping charge to two years of probation. Miller and Armstrong each were sentenced to eighty years in prison.