Matthew Johnson v. Wayne K. Patterson, Warden, Colorado State Penitentiary , 475 F.2d 1066 ( 1973 )

LEWIS, Chief Judge.

This is an appeal from judgment of the United States District Court for the District of Colorado granting Matthew Johnson’s petition for a writ of habeas corpus. Johnson was tried and convicted for rape in the state of Colorado and the judgment of conviction was affirmed on direct appeal. Johnson v. Colorado, Colo., 172 Colo. 406, 473 P.2d 974. The sole issue presented here, which was given full consideration on direct appeal, is whether the prosecution’s questions during cross-examination and comments during closing argument infringed upon Johnson’s right to remain silent under the fifth amendment.

During trial Johnson testified that he had intercourse with the complainant but with her consent and at her invitation. He testified he caught her attempting to take his car and she offered to have intercourse with him if he WQuld not call the police. During cross-examination of Johnson, the following questions and answers took place:

Q. Now, Mr. Johnson, you didn’t tell the police this, did you?

A. No, sir.

Q. The first time then that anyone has heard this is here today in court, is that correct?

A. No, sir. I told Mr. Hellerstein when he came out to see me in the County Jail.

Q. Mr. Hellerstein, your attorney, is that correct?

A. Yes, sir.

During closing argument the prosecution again referred to Johnson’s failure to tell the police his story.

And isn’t it interesting that this is the first time that he has decided to tell the truth other than, of course, he testified that he told his lawyer, and didn’t bother to tell the police.

Johnson maintains that an accused’s silence at the time of arrest cannot be the subject of comment at trial, relying principally on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States v. Arnold, 10 Cir., 425 F.2d 204; United States v. Nolan, 10 Cir., 416 F.2d 588, cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187. The Colorado Supreme Court distinguished these authorities and held:

The cross-examination and the brief comment by the district attorney in his rebuttal closing argument does no more than approach the danger point of potential prejudice involving the defendant’s Fifth Amendment rights. In our view, this cross-examination and the brief comment by the district attorney does not constitute reversible error. 473 P.2d at 977.

The appellant argues that the Colorado Supreme Court was correct in distinguishing Nolan and Arnold and further argues that the recent case of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, is dispositive and Nolan and Arnold should be overruled insofar as they are inconsistent with Harris.¹ The federal district court relied on Nolan and Arnold in holding Johnson’s constitutional rights had been violated. Moreover, the court considered Harris and found it not controlling. The reasoning of the district court is sound and we affirm the order granting petitioner’s writ of habeas corpus.

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, held that it was reversible error for the prosecution or the court to comment on an accused’s failure to take the stand and testify in his own behalf. To allow this would impose a penalty on the exercise of a constitutional right. The Supreme Court further refined this principle in Miranda. The Court stated therein:

In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. 384 U.S. at 468, n. 37, 86 S.Ct. at 1625.

In both Nolan and Arnold comment was made that the defendant had exercised his right to remain silent after arrest and that this silence was tantamount to guilt. This was considered plain error in both cases. The appellant maintains that the instant case is distinguishable as no direct comment was made that Johnson exercised his right to remain silent or that his silence was an indication of guilt.² This distinction is not well taken. A penalty is levied on the exercise of his constitutional right in any event, and the jury may as easily draw prejudicial inferences. See United States v. Nielsen, 7 Cir., 392 F.2d 849. Nor can we agree with the Colorado Supreme Court that the comments do not constitute reversible error because they “no more than approach the danger point of potential prejudice.” 473 P.2d at 977. We said in United States v. Arnold, supra, that we “decline to weigh comparative prejudice when the calibrator can only be the quantity of comment violative of constitutional rights.” 425 F.2d at 206.

Appellant argues that the comment on Johnson's failure to tell his story to the police was used to impeach his testimony and therefore falls within the ambit of Harris v. New York, supra. We do not so read Harris. But see United States v. Ramirez, 5 Cir., 441 F.2d 950, cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113.³ Under Harris the prosecution can use prior inconsistent statements to impeach testimony of a defendant who has taken the stand, even if those prior inconsistent statements were taken in contravention of the safeguards announced in Miranda. The underlying rationale of Harris is that the fifth amendment rights of an accused cannot be used to sanction perjury. A defendant cannot be allowed to testify without fear of impeachment from prior inconsistent statements as this would impair enforcement of a witness’ obligation to speak truthfully. When a defendant makes a statement at trial which is inconsistent with an earlier statement his credibility is clearly in question. This rationale does not follow with silence at the time of arrest. As the trial court properly found in the instant case, silence at the time of arrest is not an inconsistent or contradictory statement. Silence at the time of arrest is simply the exercise of a constitutional right that all persons must enjoy without qualification. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586. It would indeed be irregular and anomalous to warn an accused that he has the right to remain silent, that if he says anything it may be used against him, however, if he does remain silent that too may be used against him. See McCarthy v. United States, 6 Cir., 25 F.2d 298; United States v. Brinson, 6 Cir., 411 F.2d 1057; Fowle v. United States, 9 Cir., 410 F.2d 48. This would be the practical effect of allowing the prosecution to use at trial the fact that an accused remained silent, clearly making the assertion of the constitutional right costly. See Griffin v. California, supra.

The judgment and order of the trial court granting petitioner’s writ of habeas corpus is affirmed.

1 . Harris held that statements taken during custodial interrogation in contravention of rights delineated in Miranda may be used at trial for the limited purpose of impeachment if said statements are inconsistent with current testimony of the accused and they satisfy legal standards of trustworthiness.

2 . Appellant also argues that the instant ease is more in line with our recent decision of United States v. Julian, 10 Cir., 450 F.2d 575. Julian is inapposite to the instant case as the comment therein related to the competency of the defendant. We did not limit the rule of Nolan and Arnold but rather held it was not determinative under the peculiar circumstances of Julian.

3 . The premise of Ramirez is that silence at time of arrest is an act inconsistent with the testimony given at trial. 441 F.2d 950, 954. We simply deny the validity of the premise.