State v. Alo , 57 Haw. 418 ( 1976 )

DISSENTING OPINION OF

KIDWELL. J.,

WITH WHOM

OGATA. J., JOINS

Recognizing, as I must, the authority of the United States Supreme Court to declare the minimum standards of constitutional due process, I must dissent from the conclusion reached in Part II of the majority opinion. Doyle v. Ohio, 426 U.S. 610 (1976), categorically establishes that it is fundamentally unfair and a deprivation of due process to allow an arrested person’s silence after receipt of Miranda warnings to be used to impeach an exculpatory explanation subsequently offered at trial. In that case the court pointed out. by footnote, that where the defendant claims to have told the police upon arrest the same exculpatory version of events to which he testifies at trial, his actual behavior following arrest may be shown to contradict the version of his behavior at that time to which he has testified, though not to impeach the exculpatory story. The majority seizes upon this footnote, but the facts do not permit its application in the. case, before us.

Here the defendant claimed, on trial, to have made a statement to the arresting officer before the arrest was made, in which he said that he had just come back from a walk and did not know where the victim was or what had happened to her. The defendant also testified at length with respect to his doings at the time of the crime. It was brought out that the defendant had received Miranda warnings following his arrest and had been interrogated by Detective Springer. On cross-examination, the prosecution asked the defendant whether, at the time he talked to Detective Springer, he had told any poli» e officer "what you told us today”. The defendant answered in the negative. He was then asked whether he had told “the story you have told us” to Dete»‘tive Springer or to any police officer since talking to Detective Springer. To repeated questions along this line the defendant answered either negatively or that he did not remember.

There can ho no doubt that these questions were, asked for the purpose of impeaching the defendant’s testimony. Only the first of the line of questions, that dealing with whether he had told his stmy to any police officer before talking with Detective Springer, tended in any way to contradict any testimony of the defendant with respect to his behavior upon arrest. Since his exculpatory testimony included his version of his responses in the arresting officer's questions before receiving his Miranda warning, the rule of Doyle v. Ohio does not apply to that question. But w'hen the prosecution went on to probe into hi- silence after receipt of the Miranda warning there was no testimony of the defendant which could possibly be contradi» ted therebv. since he had given no testimony as to his bchavi»»r after arre-i. This part of the cross-examination had no purpos»* other than to impeach the defendant'- testimony h\ showing that he had conducted himself in a manner iiu-oiiM-t-mt with the credibility of his testimony, in that he bail remained silent when his natural inclination, assuming the truth of hi- testimony, would have been to tell his story. This i- pn-» i-ely what Doyle v. Ohio proscribes.

Since 1 am m>t able t<> hide that this constitutional error was harmless bevotul a reasonable doubt, State v. Pokini, 57 Haw 26, 548 P. 2d 1402 (1976) J would reverse the judgment of conviction and remand for a new trial.