Samuel Sharp and Jasper Levi Thornton, Appellants' v. United States , 410 F.2d 969 ( 1969 )

FULTON, District Judge:

Appellants Samuel Sharp and Jasper Levi Thornton were convicted after jury trial of an offense involving possession of non-taxpaid distilled spirits, in violation of Title 26, United States Code §§ 5205(a) (2) and 5604(a) (1). Their appeal pivots on the narrow question of whether it is error for a prosecutor to inquire of a defendant on cross examination why he did not offer the same explanation of his actions to officers at the time of his arrest that he subsequently offered on direct examination at trial.

Appellants were pursued and arrested a short distance from the scene of the offense. Neither made any statement to the arresting officers concerning the nature of their activities immediately prior to the arrest. Both appellants and their co-defendant, John Bailey Woods, elected to testify in their own behalf at trial. All three denied any complicity in the crime. On cross examination, Sharp and Woods were asked by the Assistant United States Attorney why they had not made the same exculpatory statements at the time of arrest that they made at trial. Defense counsel objected to these questions. The complained-of colloquies are as follows:

Prosecutor’s Question to Sharp: What is your answer to that question as to why you didn’t make a statement to them concerning what you had been doing?

Answer: I don’t know. I was just scared. That’s the reason, because I ain’t got in no trouble, nothing like that.

Prosecutor’s Question to Woods: Why didn’t you tell them what you stated in court here today?

Answer: They didn’t ask me.

Appellant Thornton was not asked a question of this nature. His appeal is based on a theory of derivative harm caused to him by the questions directed to his co-defendants.

It is elementary that a defendant who elects to testify in his own behalf is subject to cross examination and impeachment just as is any witness. Grunewald v. United States, 1957, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931. It is equally fundamental that it is error for a prosecutor to comment to a jury about a criminal defendant’s failure to take the witness stand in his own behalf, or his failure to answer a particular question which would violate his Fifth Amendment right against self-incrimination. Griffin v. California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106; Johnson v. United States, 1943, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704; Wilson v. United States, 1893, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650. In the case before us, the trial judge ruled that the quoted questions were within the permissible cross examination of these testifying defendants. The question for our determination is whether the above-quoted colloquies prejudicially called the attention of the jury to the exercise by appellants of their Fifth Amendment right to remain silent when they were arrested.

The leading case in this area is Raffel v. United States, 1926, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054. In Raffel, the first trial for conspiracy to violate the National Prohibition Act, resulted in a hung jury. Raffel was tried a second time for the same offense. A prohibition agent testified at both trials that Raffel had admitted ownership of a whiskey drinking place. Raffel testified only at the second trial, denying having made such an admission. On cross examination he was asked to explain why he had not controverted the agent’s testimony at the first trial. The conviction obtained at the second trial was appealed on the propriety of that question. The Supreme Court upheld the conviction, explaining that:

The immunity from giving testimony is one which the defendant may waive by offering himself as a witness. When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue. He may be examined for the purpose of impeaching his credibility. His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge may be the basis of adverse inference, and the jury may be so instructed. His waiver is not partial; having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing. If, therefore, the questions asked of the defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions, unless there is some reason of policy in the law of evidence which requires their exclusion. Raffel v. United States, supra, at 496-497, 46 S.Ct. at 567-568. (Citations omitted).

Simply stated, the Raffel rule is that a criminal defendant who takes the stand to testify in his own behalf can be cross examined and impeached as any other witness, unless under the particular circumstances of the case specific questions should be excluded because their probative value on the issue of the defendant’s credibility is so neglible as to be far outweighed- by their possible impermissible impact on the jury. Grunewald v. United States, supra.

In Grunewald, a defendant was asked on cross examination why he had asserted the Fifth Amendment before the grand jury in response to the same questions which he later answered at trial. The Supreme Court reversed the conviction, reaffirming Raffel, but stressing that the Grünewald situation differed in that it turned on whether the cross examination was in fact probative in impeaching the defendant’s credibility. The Court held that it was not, since under the particular circumstances of that case the defendant’s silence before the grand jury was wholly consistent not only with his innocence, but also with his later testimony at trial.

A similar situation arose in Stewart v. United States, 1961, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84. Again the Court specifically distinguished Raffel. Stewart was thrice tried for the same offense and took the stand only at the third trial, on which occasion his testimony was “pure gibberish”, having no substance whatever. The prosecutor pointed out Stewart’s previous failure to testify, and the Supreme Court reversed the conviction distinguishing Raffel by holding that “gibberish" is not subject to impeachment, since by its very nature it can be neither true nor false.

A recent Supreme Court decision, Simmons et al. v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, is somewhat analogous to the case sub judiee. There the Court held that it is error for a trial court to admit in evidence on the issue of guilt incriminating statements given by a defendant in support of an unsuccessful pretrial motion to suppress. Such a practice would require a defendant to surrender his Fourth Amendment right against unreasonable search and seizure in order to maintain his Fifth Amendment right to remain silent. The Simmons case is distinguishable from the case before us, however, in that it involved former statements made by a defendant, which were received in evidence to prove his guilt, rather than to impeach his credibility. In this case, former silence rather than former statements is involved, and the evidence was admitted on the issue of credibility rather than the issue of guilt.

Appellant Sharp voluntarily took the stand to testify. He knowingly subjected himself to the possibility of damaging impeachment cross examination on the issue of his credibility. He was asked on cross examination why he had not offered the same explanation to arresting officers that he did at trial. He claims on appeal that the implication of this question was that he may have fabricated the explanation of his activities subsequent to the night of his arrest. If such an inference were drawn from the question and Sharp’s answer, it would be logical and relevant to the issue of his credibility as a witness, and therefore permissible. However, as it happens in this case, Sharp’s answer was harmless. He said he didn’t explain his activities to the officers because he was scared, a logical and innocuous explanation. Having assumed the peril of impeachment on cross examination, he cannot now complain of the prosecutor’s efforts to attack his credibility.

Appellant Thornton also took the stand, but he was not asked the complained-of questions. Rather, he charges that because his co-defendants Sharp and Woods were so interrogated, he was derivatively damaged. There is no merit in this contention. The Fifth Amendment privilege of silence is personal and can ordinarily be asserted only by the one to whom improper questions are directed. Although it is true that a case can arise in which convictions of co-defendants must be reversed because errors committed as to one defendant were so substantial as to affect jointly tried co-defendants, Hamilton v. United States, 5 Cir. 1969, 409 F.2d 928, such is certainly not the case with Thornton. We have already held that the answer which was given by Sharp afforded him no ground for reversal. How then could his answer constitute reversible error for Thornton? It is equally certain that Thornton was not harmed by the answer which was made by Woods who replied: “They didn’t ask me.” The answer of Woods, like that of Sharp, was plausible and innocuous. It was devoid of prejudice to either Woods or Thornton.

Affirmed.