Kenyatta Ferrel Christian v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker and Willis
Argued at Norfolk, Virginia
KENYATTA FERREL CHRISTIAN
v. Record No. 0707-94-1 MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA JUNE 6, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
John R. Doyle, III, for appellant.
Donald R. Curry, Senior Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Kenyatta Ferrel Christian (appellant) appeals from his bench
trial conviction by the Circuit Court of the City of Norfolk for
robbery and use of a firearm in the commission of that felony.
At trial and in his brief before this Court, appellant contended
that the trial court, in violation of the Fifth and Fourteenth
Amendments to the Constitution of the United States, erroneously
permitted the prosecutor to cross-examine appellant concerning
his failure to inform the police of his alibi following his
arrest.
In support of his conviction, the Commonwealth presented the
following evidence: At approximately 6:50 a.m. on July 12, 1993,
the victim was stopped in his car in the drive-in lane of a
Burger King restaurant when appellant approached him exhibiting a
____________________
*Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
gun. When appellant demanded entry to the car, the victim got
out. Appellant then entered the car and drove it away. Later
that same day, an employee of the victim observed appellant in
possession of the victim's car and reported the sighting to the
police. Shortly thereafter, a policeman saw appellant driving
the car and gave chase. The chase ended when appellant abandoned
the car and entered a nearby garage. The policeman followed
appellant, caught up with and arrested him.
The record is silent as to whether appellant was advised of
his Miranda rights. There was no evidence that appellant said
anything to the police except that he later conversed with one of
the detectives to some extent.
At trial, appellant testified on his own behalf. He stated
that on the morning of the robbery he had not been at the Burger
King, that he had slept-in until 9:00 a.m., and then had gone to
look for work in the area where he was subsequently arrested.
When the prosecutor, on cross-examination, asked appellant why
did he not inform the police of his alibis when he was arrested,
appellant's objections were sustained. However, over appellant's
objection, the trial court permitted the prosecutor to ask the
following questions:
Did you ever mention to the police anything
about the Omni?
Did you ever mention to them being at
Waterside?
About the fudgery?
- 2 -
About any of the other people you talked to?
Did you ever mention to the police that you
were at your mother's house until 9:00 that
morning, asleep?
Appellant concedes that we must presume that no Miranda 1
warnings were given. Thus, appellant's election to not give the
police information concerning his alibis was made on his own,
without the assurance of Miranda.
In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court
held that when the accused remained silent after having been
warned of his Miranda rights, thereafter, if the accused elects
to testify on his behalf, the prosecutor may not inquire why at
the time of his arrest he did not give the police the information
he revealed in his defense at trial. However, in a line of
subsequent United States Supreme Court cases, the Doyle decision
was limited to cases in which the accused was informed of his
right to remain silent. See Brecht v. Abrahamson, 113 S. Ct.
1710 (1993); Fletcher v. Weir, 455 U.S. 603 (1982); Jenkins v.
Anderson, 447 U.S. 231 (1980) 2 ; In Abrahamson, the Court said:
The "implicit assurance" upon which we have
relied in our Doyle line of cases is the
right-to-remain-silent component of Miranda.
Thus, the Constitution does not prohibit the
use for impeachment purposes of a defendant's
silence prior to arrest, or after arrest if
no Miranda warnings are given. Such silence
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
In Jenkins, the Supreme Court held that when an accused elects
to testify after remaining silent at the time of his arrest, he
waives his Fifth Amendment privileges.
- 3 -
is probative and does not rest on any implied
assurance by law enforcement authorities that
it will carry no penalty.
Abrahamson, at 1716.
In accord with Weir and Abrahamson, because the record does
not show that appellant remained silent at the time of this
arrest after being warned of his rights, we hold that the trial
court did not err in permitting the objected to questions.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
- 4 -