State v. Gallup , 2011 Utah App. LEXIS 416 ( 2011 )

VOROS, Judge

(concurring in result):

I 29 I concur in the result. While I agree that reversal is required, I differ with the majority on several key points.

1. Telephone Call

T 30 The majority correctly applies State v. Palmer, 860 P.2d 339 (Utah Ct.App.1993), on the question of whether Gallup's Fifth Amendment right against self-inerimination was violated when the prosecution was permitted to introduce his pre-arrest silence in its case-in-chief. However, as the majority notes, see supra 115 note 3, the use of pre-arrest silence in the government's case-in-chief is controversial. Although the State's brief could be read as questioning the holding of Palmer, "[flor the purposes of this case only, the State does not challenge this Court's view in Palmer, that police questioning before arrest and before Mirando warnings should be given necessarily involves official compulsion."

{31 The State makes a different argument. It contends that Gallup's silence could properly be used in the State's case-in-chief because Gallup never invoked his right to remain silent. Relying primarily on Miranda cases, in particular Berghuis v. Thompkins, -- U.S. --, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010), the State maintains that Gallup was required to "expressly and unambiguously state that he did not want to speak to the trooper." The majority rejects this argument on the ground that, in the Miranda context, even an equivocal invocation of the right to silence is sufficient, See supro ¶ 18 note 4. I too would reject the State's argument, but on different grounds.

182 Berghuis addresses what a custodial suspect must do to end an interrogation. The United States Supreme Court held that a custodial suspect "who wants to invoke his or her right to remain silent [must] do so unambiguously." Id. at 2260. The Court applied the phrase "invoke his or her right to remain silent" in the context of the rule that a suspect, by invoking his or her right to remain silent, may end the interrogation. It thus refused to treat "an ambiguous or equivocal act, omission, or statement" either as "an invocation of Miranda rights" or as requiring "police to end the interrogation." Id. In keeping with this holding, the Court stated that, had the suspect in that case said he wanted to remain silent or not talk with police, "he would have invoked his ' "right to cut off questioning."'" Id. (quoting Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (quoting Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Berghuis Court also stated that,; if the suspect wanted to remain silent, "he could have said nothing in response to [the officer's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation." Id. at 2263 (emphasis added). Because of Berghuis's emphasis on ending the interrogation, and because it is difficult to see how remaining silent is not an exercise of one's right to remain silent, I read Berghuis as holding that a suspect must unequivocally invoke his right to remain silent only to end a custodial interrogation.¹

T33 Consequently, I do not agree that Berghuis or any other judicial opinion addressing a suspect's Miranda rights applies here.² Miranda protections are required "'only where there has been such a restriction on a person's freedom as to render him "in custody."'" Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam)). Gallup was not in custody here. Thus, Miranda did not apply to him, and Berghuis does not control this issue.³ Accordingly, I would reject the State's argument that Gallup was required to unambiguously invoke his Fifth Amendment right to remain silent.

2. Alibi Testimony

134 I agree with the majority that the trial court misinterpreted the alibi statute. See Utah Code Ann. § 77-14-2 (2008). However, the State also argues that the trial court's interpretation of the statute was harmless. I agree that it was.

135 "[Wle will not set aside a verdict because of the erroneous exclusion of evidence unless a proffer of evidence appears of record, and we believe that the excluded evidence would probably have had a substantial influence in bringing about a different verdict." State v. Rammel, 721 P.2d 498, 499-500 (Utah 1986); see also Utah R. Evid. 103(a)(2) ("A party may claim error in a ruling to admit or exelude evidence only if the error affects a substantial right of the party and ... if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.").

36 The trial court ruled that Gallup could testify that "he doesn't have a memory or he doesn't know where he was that night," but that he could not testify that "I was at a specific place that night." In something akin to a pre-trial proffer, Gallup's counsel told the court, "I believe that his testimony is going to be that he is going to not recall exactly where he was on that night." And at trial, Gallup testified only that he did not recall being in Utah County that night. Nothing in the record indicates that, but for the court's ruling, Gallup could or would have testified that he was at a specific place. Accordingly, while the trial court committed error, I see no basis in the record to determine whether the error affected the outcome of the trial.

3. Prejudice

T 37 The Supreme Court held in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. 824 (holding that the state had not demonstrated, beyond a reasonable doubt, that the use of the defendant's silence against him did not contribute to his convietion); accord State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573 ("Where the error results in the deprivation of a constitutional right, we apply a higher standard of serutiny, reversing the conviction unless we find the error harmless beyond a reasonable doubt." (citing Chapman, 386 U.S. at 24, 87 S.Ct. 824). Moreover, on appeal, "the State bears the burden of proving that an error passes muster under this standard." Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); accord State v. Morrison, 937 P.2d 1293, 1296 (Utah Ct.App. 1997) (citing Brecht, 507 U.S. at 630, 113 S.Ct. 1710).

138 The State argues that, even without evidence of Gallup's silence, the remaining evidence leaves no reasonable doubt of his guilt and thus admission of the evidence of silence was harmless beyond a reasonable doubt. Like the majority, and for reasons well stated in the majority opinion, I am not persuaded by this argument.

39 But the State also makes an alternative argument. Citing Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the State argues that, once Gallup testified, the prosecutor was free to cross-examine him about his pre-arrest silence. Consequently, the State argues, any error in admitting that evidence in the State's casein-chief was merely a matter of timing, and thus harmless beyond a reasonable doubt. I do not agree that this argument demonstrates that the constitutional error was harmless beyond a reasonable doubt. First, Jenkins does not address the situation where a defendant testifies in response to the prosecution's having introduced, in violation of his Fifth Amendment rights, evidence of his silence. See id. at 232-34, 100 S.Ct. 2124. An argument might be made that in such a cireumstance the law requires a defendant to make a difficult tactical choice between testifying at trial and preserving his Fifth Amendment claim for appellate review. Seq, e.g., United States v. Paladino, 401 F.3d 471, 477 (7th Cir.2005); State v. Villarreal, 126 Ariz. 589, 617 P.2d 541, 542 (App.1980). But the State has not made that argument here. In addition, the Palmer court reversed a conviction in at least partial reliance on the prosecution's use of Palmer's pre-arrest silence in its case-in-chief, notwithstanding Palmer later testified at trial. See State v. Palmer, 860 P.2d 339, 350 (Utah Ct.App. 1993).

40 In sum, I would reverse and remand based solely on the admission of Gallup's pre-arrest silence in the prosecution's case-in-chief in violation of the Fifth Amendment as interpreted by Palmer. This error has not, in my view, been demonstrated to be harmless beyond a reasonable doubt.

1 . Berghuis v. Thompkins, -- U.S. --, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010), does not address the distinction between pre-waiver and post-waiver invocations. Many jurisdictions, including Utah, have treated these two types of invocations differently. See, eg., State v. Leyva, 951 P.2d 738, 743 (Utah 1997) ('The questions of [the initial] waiver of Miranda rights and of post-waiver invocation of those rights are entirely separate."). The dissenting opinion in Berghuis seems to read the majority opinion as requiring an unequivocal invocation in pre-waiver as well as post-waiver contexts. See Berghuis, 130 S.Ct. at 2275 (Sotomayor, J., dissenting). However, whether Berghuis applies to both subcategories of custodial interrogations is immaterial here, where no custodial interrogation occurred.

2 . Even if Berghuis did apply, I see nothing equivocal in Gallup's exercise of his right to remain silent and to end the conversation. Hanging up on Trooper Clanton asserted these rights more definitively than any form of words.

3 . The State also cites Owens v. State, 937 N.E.2d 880 (Ind.Ct.App.2010), for the proposition that invocation of the right to silence requires an unequivocal statement by the accused even in a non-custodial setting. Even if Owens were controlling, the court there emphasized that its holding was "strictly limited to the particular facts currently before us." See id. at 892. Because Owens never spoke to a police officer, the facts before that court are significantly different than the facts before us. Moreover, Owens suggests that when a person is "under no compulsion to respond and may not even have been aware of the reason for [the police] communication"-or for that matter may not have even received the communication-silence may be, for that reason, "inadmissible based upon relevancy or unfair prejudice." See id. at 892.