United States v. Flemming Anderson, United States of America v. William G. Hale , 498 F.2d 1038 ( 1974 )

BAZELON, Chief Judge:

In a joint trial appellants were convicted by. a jury of robbery. Anderson received a two to eight year sentence ; imposition of Hale’s sentence was suspended, and he was placed on probation for three years. Hale seeks reversal on the ground that the prosecutor impermissibly sought to elicit his reason for not asserting his alibi to the police when arrested. Anderson seeks reversal on the ground that he was prejudiced by several comments in Hale’s closing argument. We reverse Hale’s conviction, and affirm Anderson’s.¹

I

The government’s case rested largely on the testimony of Lonnie Arrington, the complaining witness. Arrington testified that on June 1, 1971, he was on his way to purchase a pair of shoes when he stopped to chat with Hale, whom he had seen in the neighborhood, but did not know by name. Hale then followed him into the shoe store. Upon leaving, Arrington was accosted and robbed by a group of men. He immediately reported the robbery to the police. At first he claimed that $65 had been stolen, but later, after checking with his wife, he changed the figure to $96. While waiting for the police to escort him through the neighborhood in search of his attackers, Arrington noticed two men, and shouted, “there go [sic] a guy that was in the robbery.” When the police ran toward the two men, they fled. Upon their capture, Arrington identified Hale as one of the robbers. Several months later, Arrington picked out Anderson from a group of photos shown to him by the police, and then identified him at a lineup.

The arresting officer testified that Hale had $123 in his pocket and $35 in his wallet when arrested. He also claimed that Arrington had stated, before Hale had been arrested, “that he believed one of [the robbers] was a man by the name of Billy Hale.” This testimony directly contradicted Arrington’s earlier testimony to the effect that he did not “tell the police [Hale’s name], because I didn’t know if it was [him] or not.” ²

Hale took the stand in his own defense and testified that he had encountered Arrington on the day in question. He asserted, however, that after separating from Arrington he was approached by three men who asked if Arrington had any money, and that he replied he “didn’t know.” Hale claimed that he then went to the Narcotics Treatment Center where he remained during the time of the alleged robbery.³ He left the Center with a friend who subsequently purchased narcotics. Shortly after the purchase, the two men were approached by the police, and Hale fled because he feared another drug conviction.⁴

Hale also testified that his estranged wife had received her welfare check on the day in question, and that she had given him about $150 so that he could purchase some money orders for her, as he had done in the past.⁵ His wife corroborated this testimony.

Anderson presented no evidence.

II — HALE’S CLAIM

Appellant Hale argues that the trial court committed reversible error in failing to grant his motion for a mistrial after the prosecutor, on cross-examination, elicited from Hale an admission that he had not explained to the police the presence of $158 found on his person at the time of arrest. We find that: (A) the prosecutor’s question was constitutionally impermissible; and (B) the court’s failure to declare a mistrial was prejudicial error.

The record indicates that after arrest appellant was taken to the police station and informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), including his “right to remain silent.” ⁶ He was then searched and found in possession of $158. A police interrogator thereupon asked “[w]here did you get the money ?” Hale made no response.⁷

At trial, in an effort to impeach Hale’s testimony that he was carrying a large sum of money because his wife had received her welfare check and had asked him to purchase some money orders for her, the prosecutor led Hale to admit that he had not offered that explanation to the police at the time of his arrest:

Prosecutor: Did you in any way indicate [to the police] where the money came from?

Hale: No, I didn’t.

Prosecutor: Why not?

Hale: I didn’t feel it was necessary at the time.⁸

In Miranda, after holding that a defendant had a right to be advised that he could remain silent in the face of police interrogation, the Supreme Court went on to note:

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 at his privilege in the face of accusation. 384 U.S. at 468 n. 37 (emphasis supplied).⁹

Relying on this dictum, several Circuits,¹⁰ including our own,¹¹ have held that cross-examination of the sort in question in this case was improper.¹²

Recently, however, one Circuit has held,¹³ and another has implied,¹⁴ that Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), undercuts the portion of Miranda quoted above, and permits cross-examination regarding a defendant’s refusal to offer an alibi or explanation to his police interrogators.

In Harris the Court held that a defendant could be impeached by “prior inconsistent utterances” made at the time of his arrest even when they were made before the defendant was adequately apprised of his rights. The Fifth Circuit extended the Harris rationale to approve “the right of the prosecution to show [a defendant’s] prior inconsistent act of remaining silent ¹⁵ The Tenth Circuit, on the other hand, has disagreed with the Fifth Circuit observing that:

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.¹⁶

We agree with the Tenth Circuit.

The premise underlying Harris is that if a defendant voluntarily gives statements to the police that contradict his trial testimony those statements are admissible because they are obviously relevant for assessing credibility. When, however, a defendant is informed that he has a right to remain silent, and then exercises that right, there is nothing inconsistent if he subsequently offers exculpatory testimony at trial. Virtually the same issue was considered in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). There, petitioner refused to answer several questions put to him before the grand jury “on the ground that the answers would tend to incriminate him and that the Fifth Amendment therefore entitled him not to answer.”¹⁷ At trial these same questions were answered “in a way consistent with innocence,” and “the Government was then allowed [for impeachment purposes] ... to bring out in cross-examination that petitioner had pleaded his privilege before the grand jury as to these very questions.” ¹⁸ The Court found that the exercise of the privilege was “wholly consistent with innocence,” and therefore concluded, without dissent, that there was “no inconsistency” to support the cross-examination.¹⁹ The Court relied on three factors: (a) petitioner repeatedly maintained his innocence before the grand jury; (6) a grand jury inquiry, unlike a trial, is in the nature of a secret proceeding, and “[i]nnocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings . . . ”; ²⁰ (c) “most important,” at the time petitioner appeared before the grand jury he was “already considered a potential defendant” and therefore “it was quite natural for him to fear that he was being asked questions for the very purpose of providing evidence against himself.” ²¹

These reasons have even greater validity in the present case: (a) while the record does not disclose whether Hale insisted upon his innocence at the time of arrest, it clearly reveals that he steadfastly maintained his innocence throughout the proceedings; (6) police interrogation may be viewed as more “secret” than a grand jury proceeding which is conducted on the record and in the presence of the prosecutor and grand jurors. Miranda’s rules were aimed precisely at dangers presented by the secret nature of police interrogation;²² (c) Hale was more clearly a “potential defendant” then Grünewald since he had been identified by the victim as one of the robbers, and had been arrested by the police on suspicion of the instant offense.

In sum, application of the principles enunciated in Grünewald compels a finding that, as a matter of law,²³ there was nothing inconsistent between Hale’s silence in interrogation and his alibi at trial. Thus, the basic premise required for triggering the Harris rationale is absent.²⁴

Even if it could be said that appellant’s silence at the police station was inconsistent with his testimony at trial Harris would nevertheless be inapplicable in the present circumstances. In Harris the accused did not exerciee his constitutional right to remain silent, but rather spoke, albeit without first being advised of his rights. In the instant case, on the other hand, "the accused explicitly availed himself of his right to remain silent. The Supreme Court has proscribed comment by a court or prosecutor on the fact that a defendant did not testify at trial on the ground that such comment “cuts down on the privilege by making its assertion costly.” Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). The Court, relying upon this analysis, then ruled in Miranda that it is “impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.”²⁵ The rationale for this rule was articulated by Justice Black in his Grünewald concurrence:

[There are] no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution. 353 U.S. at 425-426.

Nothing in Harris undercuts this fundamental constitutional principle since Harris did not "involve assertion of the constitutional right.²⁶

Our conclusion that the prosecutor’s question was improper is buttressed by the fact it would be grossly unfair to advise an accused simply that he had “a right to remain silent,” and then use his silence against him at trial without at the very least having also informed him that if he chooses to exercise his right he may subsequently be impeached by that. fact. The Sixth Circuit noted almost fifty years ago that if an accused’s silence is to be used against him he “should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’ ” ²⁷ The Supreme Court embraced these principles in Johnson v. United States, 818 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943), where a defendant who testified was allowed to assert his privilege against self-incrimination as to some questions without having been told that the prosecutor would be permitted to comment upon this assertion. The Court ruled that even if it was error to allow petitioner to invoke his privilege, it was nonetheless improper to permit prosecutorial comment because the defendant was thereby “deprive [d] . . . of an intelligent choice between claiming or waiving his privilege.” ²⁸

B.

The government argues that the error was harmless since the trial court interrupted the prosecutor and informed the jury that Hale “was not required to indicate where the money came from You may disregard it, ladies and gentlemen.”²⁹ To avoid reversal, however, the error, being of constitutional magnitude,³⁰ must be harmless beyond a reasonable doubt.³¹

The government’s case against Hale rests on three limbs: (I) the testimony of the complaining witness; (2) appellant’s flight at the time of arrest; and (3) appellant’s possession of $158.

(1) The testimony of the complaining witness was confused and contradictory.

The trial court characterized it as follows:

[O]ne view . . . with respect to this complainant might be that he has been contradicted to such a point that he wouldn’t be believed. Another perfectly fair view ... is that he is an entirely sincere witness who has a limited intellectual ability, [and] who was in part confused and misled in some of his answers. . .³²

(2) With respect to appellant’s flight upon apprehension, he explained that his companion had purchased heroin, and, since he had a prior narcotics conviction, he was afraid. He claimed that his former narcotics conviction arose in the same circumstances; that is, when he was not himself in possession of drugs.

(3) In the face of the weak testimony by the complaining witness, and the limited probity of the evidence on flight,³³ evidence of the large sum of money found on appellant played a central part in the government’s case. Appellant attacked this evidence in two ways: first, by showing that the sum of money found on him was much greater than the amount allegedly stolen; and second, by offering an alibi, corroborated by his wife, explaining his possession of the large sum. In this context the improper question by the prosecutor leading to Hale’s admission that he did not offer his alibi to the police was calculated to break a critical point in the defense since it was apparently intended to indicate that the alibi had been fabricated sometime between arrest and trial.

In Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961), petitioner, who had been convicted three times — his first two convictions having been reversed by this court³⁴ — declined to testify at the first two trials, but took the stand at the third “in an apparent effort to bolster [his] contention of insanity [the sole issue in the case].” ³⁵ On cross-examination, after the defendant admitted that he had been “tried on two other occasions,” the prosecutor asked: “This is the first time you have gone on the stand, isn’t it ?”³⁶ The Court found the question improper and concluded that the error was not harmless. Speaking of a potential cautionary instruction to the jury, such as the one given in this case, the Court said:

[T]he danger of the situation would have been increased by a cautionary instruction in that such an instruction would have again brought the jury’s attention to petitioner’s prior failure to testify. 366 U.S. at 10.

Thus, the error in the present case, when considered in light of the evidence against appellant, cannot be deemed harmless beyond a reasonable doubt.³⁷

Ill — ANDERSON’S CLAIM

Appellant Anderson contends that his constitutional right to remain silent was abridged by Hale’s closing argument to the jury:

All they can do — all people can do is come in and tell you exactly what they did that day. . . . That is all they are required to do. They are not even required to do that, ladies and gentlemen.

And, of course, Mr. Hale took the stand and did just that.³⁸

Anderson maintains that this statement urged the jury to draw a negative inference from Anderson’s failure to testify. We have studied Hale’s closing argument, and find that this statement, by itself,³⁹ did not “invite an inference of [Anderson’s] guilt.” United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317, 1335-1336 (1971) (Bazelon, C. J„ dissenting).⁴⁰ Indeed, shortly after completion of Hale’s closing argument, the court instructed the jury that it “must not draw any inference of guilt against the defendant because he did not testify.”⁴¹ In these circumstances, we find no error warranting reversal of Anderson’s conviction.

So ordered.

1 . Both appellants argue that the trial court’s refusal to grant a motion for judgment of acquittal was erroneous since the testimony of the complaining witness was “inherently incredible.” We find sufficient evidence to sustain the verdicts. The question of credibility was for the jury. See, e. g., Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602 (1967).

2 . Arrington also stated that there was a witness to the robbery, who was never identified, who had told him that one of the robbers was named “Billy Hale or Bobby Hale.” Although he initially testified that he did not identify Hale by name to the police, his subsequent testimony is confused. Counsel for Hale asked: “So you neglected to mention to the police that one of the individuals had given you the name of one of the robbers, is that right?” And Arrington answered, “I told them.” The record does not reveal what it is that Arrington told the police.

3 . An administrator from the Center testified that his records indicated that Hale had visited the Center on the day in question, but that they did not reveal the time of the visit.

4 . Hale claimed that his previous conviction resulted from being arrested in the presence of a friend who was in possession of narcotics.

5 . The owner of a local liquor store testified that he knew Hale, and that Hale had purchased money orders from him on several occasions.

6 . Tr. at 259.

7 . Tr. at 262.

8 . Tr. at 259.

9 . See also Schmerber v. California, 384 U.S. 757, 765-766, 86 S.Ct. 1826, 16 L.Ed.2d 908 n. 9 (1966).

10 . See, e. g., Fowle v. United States, 410 F.2d 48 (9th Cir. 1969); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); United States v. Semensohn, 421 F.2d 1206 (2nd Cir. 1970). See also Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965). But see Sharp v. United States, 410 F.2d 969 (5th Cir. 1969). The Sharp majority inexplicably omits reference to the portion of Miranda at issue despite forceful reliance on it by Chief Judge Brown in dissent. 410 F.2d at 972.

11 . Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586 (1968).

12 . Our dissenting colleague argues that the Miranda dictum is inapplicable to the facts of this case. The record, however, clearly indicates otherwise. Appellant was under police interrogation, the sort of “accusation” to which Miranda referred. See 384 U.S. at 444 & 468 n. 37. And, when he was asked “[w]here did you get the money?” he stood "mute.” This fact was then “use[dY’ against him “at trial." As the eases cited in note 10 supra demonstrate, the Miranda dictum applies precisely to these facts. Nor would it matter, despite the suggestion by the dissent, that Hale answered some questions before remaining silent: “[Tjhere is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent .” Miranda supra, 384 U.S. at 475-476. In fact, the record does not reveal whether appellant answered any questions or made any statements.

13 . United States v. Ramirez, 441 F.2d 950 (5th Cir. 1971).

14 . In United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3rd Cir. 1973), a defendant was arrested for a crime other than the homicide at issue in the appeal before the Third Circuit. At trial he explained that the homicide was accidental. The court held that defendant was properly impeached by his silence at the police station because he had not been accused of committing any homicide, and therefore should have notified the police if he knew about an accidental homicide. Two judges issued a concurring opinion seemingly on the ground that Harris allows impeachment by prior silence at the police station.

In a subsequent case a different panel of the same Circuit held that it was improper to impeach a defendant by pointing out that he invoked another of his Miranda rights, namely, the right to an attorney. United States ex rel. Macon v. Yeager, 476 F.2d 613 (3rd Cir. 1973). In the face of these two decisions a district court in the Third Circuit has recently held that a defendant can, be impeached by his prior silence only when police interrogation does not concern the crime for which the defendant is subsequently indicted. The district court then concluded that cross-examination of the sort at issue in this case was improper notwithstanding Harris. United States v. Holland, 360 F.Supp. 908 (E.D.Pa.1973).

15 . United States v. Ramirez, 441 F.2d 950, 954 (5th Cir. 1971) (emphasis supplied).

16 . Johnson v. Patterson, 475 F.2d 1066, 1068 (10th Cir. 1973). With respect to Ramirez supra, the Tenth Circuit said, “[t]he premise of Ramirez is that silence at the time of arrest is an act inconsistent with the testimony given at trial. . . . We simply deny the validity of the premise.” 476 F.2d at 1068 n. 3. See also Deats v. Rodriguez, 477 F.2d 1023 (10th Cir. 1973).

17 . 353 U.S. at 416. In the instant case Hale did not decline to answer on the ground that his answers might tend to incriminate him, but simply remained silent in the face of the police interrogator’s instruction that he had “a right to remain silent.”

18 . 353 U.S. at 417.

19 . 353 U.S. at 421, 422. See also Stewart v. United States, 366 U.S. 1, 7 n. 14, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961).

20 . 353 U.S. at 422-423.

21 . 353 U.S. at 423.

22 . See Miranda supra, 384 U.S. at 445 (“The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.”).

23 . The Grünewald Court acknowledged that “the question whether a prior statement is sufficiently inconsistent to be allowed to go 'to the jury on the question of credibility is usually within the discretion of the trial court. But where such evidentiary matter has grave constitutional overtones, as it does here, we feel justified in exercising this Court’s supervisory control . . . ” 353 U.S. at 423-424.

24 . See Fowle v. United States, 410 F.2d 48, 51 (9th Cir. 1969) (“Surely . . . [petitioner’s] silence was no more contradictory of his later testimony than was the silence of [the petitioner m Grünewald].”) ; Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973).

25 . 384 U.S. at 468 n. 37. See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 587 (1968) (“The distance between [Grif/m] and the prosecutor’s comments here ... is infinitesimal.”); Fowle v. United States, 410 F.2d 48, 51-55 (9th Cir. 1969); Johnson v. Patterson, 475 F.2d 1066, 1067-1068 (10th Cir. 1973). See generally Spevak v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); United States ex rel. Macon v. Yeager, 476 F.2d 613, 616 (3rd Cir. 1973) (“Griffin holds broadly that, at least in the criminal context, the relevant question is whether the particular defendant has been harmed by the state’s use of the fact that he engaged in constitutionally protected conduct . . .”) (emphasis in original).

26 . The dissent relies heavily on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), where the Court held that a defendant who testifies at his second trial, but who did not testify at the first trial, may be impeached by his prior silence when his purpose in testifying is to deny some statements attributed to him by a witness who has offered the same testimony at both trials. In Grünewald supra, the Court explicitly declined to reaffirm Raffel. 353 U.S. at 421. Four Justices concurring .in Grünewald indicated that Raffel should be overruled. The rationale of that concurrence provided the framework for the Court’s subsequent decision in Griffin. Accordingly, there is a serious question whether Raffel has any remaining vitality. See Note, Use of Silence, 33 Md.L.Rev. 363, 367 n. 21 (1973). See also Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961) (cannot attack witness’s demeanor by introducing fact that he failed to testify at former trials).

In any event, Raffel is clearly distinguishable from the present circumstances because there the petitioner was impeached hy his refusal to testify at a former trial, whereas in the instant case appellant declined to speak with police interrogators. There are good reasons why a • defendant would refuse to speak to the police in a proceeding that is off the record, and at a time when he is without the advice of counsel, and then decide to testify at trial. See Grünewald supra.

27 . McCarthy v. United States, 25 F.2d 298 (6th Cir. 1928). See also Johnson v. Patterson, 475 F.2d 1066 (10th Cir. 1973); United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969); Fowle v. United States, 410 F.2d 48 (9th Cir. 1969).

28 . 318 U.S. at 198. The Court noted :

Elementary fairness requires that an accused not be misled on th [is] score. If advised by the court that his claim of privilege though granted would be used against him, he well might never claim it. Id. at 197.

This rationale is equally compelling in the face of police interrogation and advice.

29 . Tr. at 259.

30 . See Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 n. 8 (1968).

31 . Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

32 Tr. at 187.

33 . See generally Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110, 1114 & n. 29 (1969); Miller v. United States, 116 U.S.App.D.C. 45, 320 F.2d 767 (1963).

34 . Stewart v. United States, 94 U.S.App.D.C. 293, 214 F.2d 879 (1954); Stewart v. United States, 101 U.S.App.D.C. 51, 247 F.2d 42 (1957).

35 . 366 U.S. at 3.

36 . 366 U.S. at 4.

37 . See, e. g., United States ex rel. Macon v. Yeager, 476 F.2d 613, 616-617 (3rd Cir. 1973); Gillison v. United States, 130 U.S.App.D.C. 215, 399 F.2d 586, 588 (1968). Compare Leake v. Cox, 432 F.2d 982 (4th Cir. 1970) (“overwhelming evidence of guilt”); United States v. Wick, 416 F.2d 61 (7th Cir. 1969) (“overwhelming evidence against the defendant”).

38 . Tr. at 294.

39 . Anderson argues that this statement was particularly prejudicial because other parts of Hale’s closing argument attempted to place the blame on Anderson while exonerating Hale. Anderson cites several statements in Hale’s argument indicating that Arringtonhad testified before the grand jury that Hale had committed certain inculpatory acts, whereas at trial he testified that Anderson, did these acts. The record, however, does not support Anderson’s claim. When placed in context, it is clear that the statements in Hale’s closing argument were aimed solely at convincing the jury that Arrington was wholly incredible since he continually changed his story. Thus, Anderson was not harmed. See DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962); United States v. Barney, 371 F.2d 166 (7th Cir. 1966). Compare United States v. Hines, 147 U.S.App.D.C. 249, 455 F.2d 1317 (1971), with id. at 1335 (Bazelon, C. J., dissenting).

40 . In Hines, counsel for one co-defendant argued “you and I, if we were innocent, we would take the stand to try to exonerate ourselves.” 455 F.2d at 1334.

41 . Tr. at 308.