State v. Richared E. Ladue

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court,
109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may
be made before this opinion goes to press.
2017 VT 20
No. 2014-281
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Chittenden Unit,
Criminal Division
Richard E. Ladue December Term, 2015
Kevin W. Griffin, J. (motion to suppress and dismiss);
Michael S. Kupersmith, J. (final judgment)
Thomas Donovan, Jr., Chittenden County State’s Attorney, Benjamin Chater and
Christopher C. Moll, Deputy State’s Attorneys, and Devin Ringger, Law Clerk, Burlington,
for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Marshall Pahl, Appellate Defender, Montpelier, for
Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. DOOLEY, J. Defendant appeals his conviction for driving under the influence
(DUI), arguing that: (1) the State’s principal witness testified on a matter that violated the trial
court’s pretrial ruling granting defendant’s motion in limine; (2) the court erred in overruling
defendant’s objection to the prosecutor eliciting testimony from the State’s principal witness that
defendant never reported to police that he was not driving his vehicle on the night in question;
(3) the prosecutor made several impermissible statements during his opening statement and
closing argument regarding defendant’s failure to inform police that he was not the driver; and
(4) in attempting to define the term “reasonable doubt,” the court diminished the constitutional
burden of proof imposed on the State, thereby committing structural error that requires reversal
of defendant’s conviction. We affirm.
I. Facts and Procedural History
¶ 2. With some notable exceptions, the facts are largely undisputed. At
approximately 11:05 p.m. on January 27, 2014, Officer Richard Weinisch was dispatched to a
residence in Burlington to investigate a report of a hit-and-run accident. A woman at the
residence reported hearing a crash and seeing a late 1990s silver-colored Honda with loud
exhaust backing away from a Subaru wagon that had been damaged. After looking for the
Honda, Officer Weinisch returned to the scene of the accident and observed a silver Honda
parked nearby. The witness to the accident identified the vehicle as the one involved in the
accident. Officer Weinisch ran the license plate number through dispatch, identified defendant
as the registered owner, and proceeded to defendant’s listed address.
¶ 3. When Officer Weinisch arrived at that residence, he spoke to defendant’s
mother, who informed him that defendant was not home. Officer Weinisch left the residence,
but as he was entering his patrol car parked across the street, he observed the same silver Honda
turn into the driveway of the residence. Officer Weinisch proceeded up the driveway on foot as
the car pulled into a parking space at the end of the driveway to the left, close to the rear of the
residence. According to Officer Weinisch’s trial testimony, the first question he asked
defendant, in investigating the hit-and-run accident, was whether anybody else had driven his car
that night, to which defendant replied, “no.” Officer Weinisch did not notice any visible damage
to the car, and defendant denied any knowledge of the accident.
¶ 4. During the conversation, Officer Weinisch observed that defendant’s eyes were
bloodshot and watery and that there was a strong odor of alcohol emanating from his breath.
Upon inquiry, defendant advised the officer that he had consumed three alcoholic drinks earlier
in the evening. Suspecting that defendant was impaired, Officer Weinisch asked him to perform
2
field dexterity exercises, to which defendant agreed. Based on his experience and training, the
officer concluded that defendant did not successfully perform the exercises. Defendant then
agreed to submit a preliminary breath test (PBT), which revealed a blood-alcohol concentration
(BAC) of .150, nearly double the legal limit. At that point, Officer Weinisch arrested defendant
and brought him to the police station for DUI processing, where at 12:45 a.m. defendant
produced a breath sample indicating a BAC of .122.
¶ 5. During the processing interview, defendant stated that he drove his vehicle from
the site of the hit-and-run accident into the driveway of his mother’s residence, where he was
confronted by Officer Weinisch. Defendant signed a form acknowledging that he made those
statements to the interviewing officer.
¶ 6. On February 11, 2014, defendant was charged with DUI, first offense. Defendant
filed a motion to suppress, claiming that there was no legal basis for the stop that resulted in his
arrest for DUI. Following an April 16, 2014 hearing, the trial court denied the motion. A jury
trial was held on May 21, 2014. At the trial, defendant, his mother, and his cousin all testified
that defendant’s cousin, and not defendant, was driving defendant’s car on the night in question.
Following the presentation of evidence, the jury found defendant guilty. Defendant moved for a
new trial, arguing that two questions the jury posed to the trial court after it retired to deliberate
indicated that it had switched the burden of proof from the State to defendant. The court denied
the motion and later sentenced defendant to six-to-twelve months incarceration, all suspended,
with a probationary term under special conditions.
II. Testimony Concerning the Horizontal Gaze Nystagmus Test
¶ 7. Defendant first argues that the State’s principal witness, Officer Weinisch,
testified about a matter in violation of the trial court’s grant of defendant’s pretrial motion in
limine, and that the testimony prejudiced him. We conclude that any error in admission of the
testimony was harmless.
3
¶ 8. On the morning of the trial, defense counsel stated that she had some motions in
limine, the first of which was to preclude Officer Weinisch from testifying about the horizontal
gaze nystagmus (HGN) test that he had given defendant “because he’s not qualified as an expert
to do so.” The State responded, “That’s fine,” and the court stated, “Okay.” Later, during the
direct examination of Officer Weinisch, the prosecutor asked the officer what he did after he
observed that defendant exhibited indicia of intoxication, to which the officer replied: “The first
thing I did was the horizontal gaze nystagmus test in the driveway.” The prosecutor immediately
asked the officer what other tests he had defendant perform, at which point the testimony focused
on the other two field dexterity exercises and defendant’s poor performance of those exercises.
The prosecutor later asked Officer Weinisch if he formed an opinion as to defendant’s level of
intoxication based on his observations of defendant and defendant’s performance of the
exercises. The officer stated that he believed defendant to be over the legal limit to operate a
vehicle, but that, to “elaborate further . . . I’d have to refer to the HGN, which I believe we’re not
doing.”1
¶ 9. Defendant argues that this testimony, particularly this last response by Officer
Weinisch, constituted reversible error because a BAC above .08 creates only a permissible
inference of impairment, see 23 V.S.A. § 1204(a)(2), and does not preclude a jury from relying
on other evidence to find impairment, id. § 1204(b). We find no reversible error. State v.
Kinney, 2011 VT 74, ¶ 6, 190 Vt. 195, 27 A.3d 348 (“[E]rror in the admission of evidence does
not compel reversal of a criminal conviction where it is clear beyond a reasonable doubt that the
1
Defendant did not object to either response in which Officer Weinisch mentioned the
HGN test. “Once the court makes a definitive ruling on the record admitting or excluding
evidence, either at or before trial, a party need not renew an objection or offer of proof to
preserve a claim of error for appeal.” V.R.E. 103(a)(2). But when the trial court makes “only a
preliminary ruling denying defendant’s motion in limine to exclude the testimony,” then a
defendant must object to the testimony at trial when it is presented. See State v. Brink, 2008 VT
33, ¶ 7, 183 Vt. 603, 949 A.2d 1069 (mem.). We assume, without addressing the question, that
the State’s agreement not to present testimony about the HGN, and the trial court’s
acknowledgment of that agreement, precluded the need for a later objection when Officer
Weinisch testified about the HGN test.
4
error was harmless, considered in light of the strength of the State’s case apart from the
offending evidence and the strength of the offending evidence itself.”).
¶ 10. In this case, the offending evidence had virtually no strength at all, while the
State’s evidence of defendant’s impairment was very strong. Although it was the State’s burden
to prove impairment beyond a reasonable doubt, defendant did not challenge the notion that he
was impaired, instead focusing exclusively on his claim that he was not driving his car. For its
part, the State presented substantial, unchallenged evidence as to defendant’s impairment.
Officer Weinisch testified that defendant’s eyes were bloodshot and watery and that a strong
odor of alcohol emanated from his breath. The officer also testified, without objection, as to
defendant’s failure to successfully perform two field dexterity exercises. Moreover, defendant’s
evidentiary breath sample was well over the legal limit. Given this evidence of impairment,
Officer Weinisch’s brief referral to the HGN test, even given the suggestion that the results of
the test indicated impairment, was harmless beyond a reasonable doubt.
III. Testimony Concerning Defendant’s Silence Before Trial
¶ 11. Next, defendant argues that the trial court erred in overruling his objection to the
prosecutor’s final question on redirect examination of Officer Weinisch, which elicited a
response that defendant never contacted police regarding his claim that he was not the driver on
the night in question. Again, we conclude that any error in the admission of this testimony was
harmless, if error at all.
¶ 12. The exchange at issue was as follows:
PROSECUTOR: And one final question, Officer. In the three
months following this investigation, did the defendant or any of the
defendant’s friends or relatives, ever call you or the Burlington
Police Department, to your knowledge, to indicate that somebody
else was driving that night?
DEFENSE COUNSEL: Your Honor, I’m going to object with this
question as it respects [defendant], as I believe it suggests to the
jury that he had some obligation, which—
5
THE COURT: No—
DEFENSE COUNSEL: —under the Fifth Amendment, he does not
have.
THE COURT: No, the objection is overruled.
PROSECUTOR: Can you answer the question?
OFFICER WEINISCH: So at no point in time from the beginning
of my investigation that night through today, did anybody
including defendant ever tell me that he was not driving that
vehicle.
¶ 13. In a one-paragraph argument, defendant asserts that admission of evidence of his
silence was error, citing the U.S. Supreme Court’s decision in Doyle v. Ohio, 426 U.S. 610
(1976) and this Court’s reliance on that decision in State v. Mosher, 143 Vt. 197, 465 A.2d 261
(1983). This due process claim is made pursuant to the Fifth and Fourteenth Amendments of the
U.S. Constitution,2 and thus federal law, and most particularly U.S. Supreme Court case law, is
controlling.
¶ 14. We conclude that defendant’s reliance upon Doyle and Mosher is misplaced,
given the circumstances of the instant case. But before examining the relevant case law, we
emphasize two points. First, as we explain in detail in considering defendant’s third argument
challenging statements made by the prosecutor during his opening statement and closing
argument, the State was aware that the defense witnesses, including defendant, were going to
testify at trial that defendant was not driving his car on the night in question. Second, although
the challenged testimony technically came in during the State’s case in chief, it was admitted on
redirect examination, essentially to rehabilitate the principal witness, Officer Weinisch,
following defendant’s cross-examination of the officer. Cf. State v. Chambers, 144 Vt. 377, 380,
2
In relevant part, the Fifth Amendment provides that no person “shall be compelled in
any Criminal Case to be a witness against himself [or herself] . . . without due process of law.”
U.S. Const. amend. V. In relevant part, the Fourteenth Amendment provides that no state “shall
make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend XIV, § 1.
6
477 A.2d 974, 977 (1984) (concluding that where defense counsel cross-examined prosecution’s
witness about letter witness had written to defendant and used statements in letter to impeach
witness, defense opened door for prosecution to rehabilitate its witness through redirect
examination); State v. Settle, 141 Vt. 58, 62, 442 A.2d 1314, 1316 (1982) (“Whatever effect the
cross-examination may have had on the jury in weakening the impact of [the witness’s] initial
identification [of the defendants], the State was properly allowed on redirect, in the discretion of
the trial judge, to meet what had been developed on cross-examination, to explain away any
tendency to discredit [the witness] that may have been accomplished.”).
¶ 15. During the course of what amounts to twenty-three pages of transcript, Officer
Weinisch testified on direct examination as to what occurred on the night in question, including
that: (1) he told defendant’s mother that defendant’s car may have been involved in an accident
and that defendant needed to call him so he could determine who, if anybody, had been driving
defendant’s car; (2) a few minutes later, as he walked up the driveway behind defendant’s car,
which had just pulled in, he lost sight of the front of the car for “two, three seconds”; (3) as he
approached defendant’s car, he observed defendant exiting the driver’s seat from a seated
position and saw no one else get out of the car; (4) the first thing he asked defendant—in
connection with the reported accident and before he observed any indicia of intoxication—“was
if anybody else had been driving his vehicle that night”; (5) defendant responded “no” to that
question; (6) during the ensuing discussion, he observed indicia of intoxication, and his suspicion
that defendant had been driving while intoxicated was confirmed by results of the field dexterity
exercises defendant performed and the preliminary breath test defendant provided; (7) he then
arrested defendant and advised him, among other things, that he had a right to remain silent and
to speak to a lawyer; (8) defendant waived those rights and decided to speak to him; and (9) in
response to questions on the DUI affidavit form defendant signed, defendant indicated that he
7
had driven from the scene of the hit-and-run to his mother’s home, where Officer Weinisch
confronted him.
¶ 16. At no time during this direct examination of Officer Weinisch—the State’s only
witness other than a state chemist who testified about the breath test result—did the prosecutor
question the officer as to whether defendant had ever informed police after his arrest and DUI
processing of his claim that his cousin had actually been the driver of the car.
¶ 17. On cross-examination, defense counsel immediately attacked Officer Weinisch’s
reliability and credibility as to who was driving defendant’s car that night. Defense counsel got
Officer Weinisch to acknowledge that he could not see who was driving the car while it was
moving up the driveway toward the parking area behind the house. 3 The following exchange
then occurred:
Q: Okay. And you did lose sight of the vehicle, I believe you said
for a matter of two or three seconds?
A: I did.
Q: Okay.
A: Just the passenger compartment of the vehicle. I could still see
the . . . trunk area of the vehicle. But . . . I could not see the doors
of the vehicle.
Q: So you don’t really know whether [defendant] was the only
person in the car.
A: No. I do.
Q: Well, you said that you couldn’t see the whole vehicle and you
lost sight of most of the vehicle for two to three seconds.
A: Two or three seconds, while the vehicle was pulling into a
parking spot.
Q: So you don’t know what happened during those two or three
seconds, do you?
3
During the April 16, 2014 motion hearing, the State presented Officer Weinisch’s
unchallenged testimony, which is apparent from exhibit photographs, that the driveway was
about twenty yards long, at the end of which there were parking spots just to the left behind the
house.
8
A: The vehicle parked.
Q: But you couldn’t see it?
A: I could see the vehicle moving into a parking spot, so—
Q: You could not see the entirety of the vehicle. Is that what you
testified before?
A: Yes.
¶ 18. In response to this line of questioning attacking Officer Weinisch’s reliability and
credibility as to who was driving defendant’s car, the prosecutor attempted to rehabilitate the
officer’s prior direct testimony by asking him two questions on redirect examination: (1) whether
he saw anybody else around defendant’s car after he made contact with defendant; and
(2) whether, to his knowledge, in the three months since that night, either defendant or his
relatives called police to indicate that someone other than defendant had been driving
defendant’s car that night. It is the latter question, and defendant’s response to that question, to
which defendant objects.
¶ 19. As noted, defendant relies primarily on Doyle to support his claim of error. In
that case, the U.S. Supreme Court considered “whether a state prosecutor may seek to impeach a
defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant
about his failure to have told the story after receiving Miranda warnings at the time of his arrest.”
426 U.S. at 611 (footnote omitted). The Court held “that the use for impeachment purposes of
petitioner’s silence, at the time of arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment.” Id. at 619 (emphasis added). The Court
explained that because Miranda warnings contain an implicit assurance that silence will carry no
penalty, in “such circumstances [where warnings are given], it would be fundamentally unfair
and a deprivation of due process to allow the arrested person’s silence to be used to impeach an
explanation subsequently offered at trial.” Id. at 618.
9
¶ 20. The Court explicitly noted, however, that it was not considering if the
prosecution’s cross-examination of a defendant on his or her general pretrial silence regarding an
exculpatory story presented at trial amounts to constitutional error, stating that such “averments
of error present different considerations from those implicated by cross-
examining . . . defendants as to their silence after receiving Miranda warnings at the time of
arrest.” Id. at 616 n.6; see United States v. Laury, 985 F.2d 1293, 1304 (5th Cir. 1993)
(“However, Doyle did not decide whether comments on a defendant’s failure to give an alibi
anytime prior to trial is unconstitutional.”). Thus, Doyle is plainly distinguishable from, and
does not control, this case, where defendant is challenging the State’s elicitation of testimony
regarding defendant’s general silence following an investigation in which he explicitly waived
his Miranda rights and spoke to police about the same facts that defendant now asserts he had a
right to silence.
¶ 21. Over the ensuing years, the U.S. Supreme Court has clarified, and in some
respects narrowed, the scope of the holding in Doyle. On multiple occasions, the Court has
reiterated that the Doyle holding “rests on the ‘fundamental unfairness of implicitly assuring a
suspect that his silence will not be used against him and then using his silence to impeach an
explanation subsequently offered at trial.’ ” Wainwright v. Greenfield, 474 U.S. 284, 291 (1986)
(quoting South Dakota v. Neville, 459 U.S. 553, 565 (1983)); see Brecht v. Abrahamson, 507
U.S. 619, 628 (1993) (same); see also Salinas v. Texas, ___ U.S. ___, 133 S. Ct. 2174, 2182 n.3
(2013) (citing Doyle for principle that due process “prohibits prosecutors from pointing to the
fact that a defendant was silent after he [or she] heard Miranda warnings” (emphasis added));
Fletcher v. Weir, 455 U.S. 603, 607 (1982) (per curiam) (“In the absence of the sort of
affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due
process of law for a State to permit cross-examination as to postarrest silence when a defendant
chooses to take the stand.”); United States v. Carter, 953 F.2d 1449, 1464 (5th Cir. 1992)
10
(“Subsequent Supreme Court decisions have clarified that the Doyle protection derives primarily
from the implicit assurance of the Miranda warnings and thus is strongest in the context of post-
Miranda-warning interrogation.”). Thus, the holding in Doyle does not bar cross-examination as
to prior inconsistent statements made by the defendant “because a defendant who voluntarily
speaks after receiving Miranda warnings has not been induced to remain silent.” Anderson v.
Charles, 447 U.S. 404, 408 (1980).
¶ 22. As noted, in the instant case, defendant was given Miranda rights, but elected to
waive them and speak to police. After doing so, he informed the officer during DUI processing
that he had driven his car from the scene of the hit-and-run accident “into [the] driveway” of his
mother’s residence, where Officer Weinisch confronted him. At trial, however, he testified that
he told Officer Weinisch at the time the officer confronted him in his driveway that he had not
been driving his car—which is directly inconsistent not only with Officer Weinisch’s testimony,
but also with his statement to Officer Weinisch during DUI processing after waiving his Miranda
rights, as reflected on a DUI statement form that defendant signed.
¶ 23. In Wainwright, in contrast to the instant case, the defendant exercised his right to
remain silent after being read his Miranda rights. 474 U.S. at 286. The Court noted that the
prosecution’s use of a defendant’s silence as affirmative proof of guilt in its case in chief “might
thus be especially egregious because, unlike Doyle, there was no risk that exclusion of the
evidence [would] merely provide a shield for perjury.” Id. at 292 n.8 (quotation omitted). The
same cannot be said of the instant case, where the State was responding to defendant’s eleventh-
hour denial at trial that he was driving his car that night, which was wholly inconsistent with
statements defendant made after being given his Miranda rights on the night of his arrest. As we
stated in State v. Hunt, “[o]nce a defendant decides to speak, [the defendant’s] failure to speak in
exculpation cannot be explained away as a response to Miranda warnings.” 150 Vt. 483, 500,
555 A.2d 369, 380 (1988). Every defendant has the right to take the stand, but having
11
voluntarily done so, a defendant is “under an obligation to speak truthfully and accurately,” and
the prosecution may “utilize the traditional truth-testing devices of the adversary process.”
Harris v. New York, 401 U.S. 222, 225 (1971).
¶ 24. For similar reasons, we find unavailing defendant’s reliance on State v. Mosher,
which in turn relied upon Doyle. In Mosher, we found reversible error in the prosecution’s use
in its case in chief of the defendant’s silence after being confronted with inculpatory evidence
during a police interview. In that case, however, we concluded that the prosecution was
foreclosed from presenting substantive evidence of the defendant’s conduct at the end of the
interview because the eighteen-year-old defendant “effectively reasserted” his Miranda rights,
including his right to remain silent, by walking out of the interview. See Mosher, 143 Vt. at 203-
06, 465 A.2d at 264-66. That situation is plainly distinguishable from this case, where defendant
waived his Miranda rights, including his right to remain silent, before making statements
inconsistent with his later trial testimony.
¶ 25. To be sure, in Mosher we found “no authority for the proposition that it is not
error for the State to use defendant’s silence as substantive evidence of guilt.” 143 Vt. at 205,
465 A.2d at 266. But, as noted above, in Mosher we concluded that the youthful defendant had
asserted his right to remain silent after being read his Miranda rights. Moreover, none of the
cases cited by Mosher in support of its statement that “ample authority existed for the opposite
proposition” involved a situation such as the instant one, in which defendant waived his Miranda
rights, spoke to police, and then later asserted a defense at trial inconsistent with the statements
made to police. Mosher, 143 Vt. at 205-06, 465 A.2d at 266; see United States v. Moore, 104
F.3d 377, 385 (D.C. Cir. 1997) (“While a defendant who chooses to volunteer an unsolicited
admission or statement to police before questioning may be held to have waived the protection of
that right, the defendant who stands silent must be treated as having asserted it.”); United States
v. Lopez, 575 F.2d 681, 684-85 (9th Cir. 1978) (finding plain but harmless error where
12
prosecutor improperly commented on defendant’s failure to explain that shooting was accident);
Egger v. United States, 509 F.2d 745, 747 (9th Cir. 1975) (finding harmless error where State’s
witness was allowed to testify that defendant refused to comment on whether he had knowledge
of stolen bank money); United States v. Brinson, 411 F.2d 1057, 1060 (6th Cir. 1969) (finding
error in allowing testimony regarding defendant’s failure to deny accusations because “the
question whether his silence has any incriminating effect depends upon whether he was under
any duty or any natural impulse to speak”); United States v. Brierly, 384 F.2d 992, 993-94 (3d.
Cir. 1967) (concluding that eliciting testimony that defendant clenched his lips and shook his
head upon hearing accusations against him was fundamentally unfair); cf. Hunt, 150 Vt. at 500,
555 A.2d at 380 (distinguishing Mosher and stating that “where defendant has chosen not to
remain silent, the prosecutor may comment to the jury, and use for impeachment, inferences
from the statements which he made of his own volition”).
¶ 26. In short, neither Doyle nor Mosher are controlling, given the circumstances of this
case. In fact, no U.S. Supreme Court decision supports the proposition, as argued by defendant,
that the prosecution cannot reference in its case in chief defendant’s silence regarding an
exculpatory defense leading up to trial where the defendant had waived his Miranda rights at the
time of the arrest and made inculpatory statements inconsistent with that defense. Nor does any
decision support the proposition that the prosecution cannot present rehabilitative testimony
regarding such silence on redirect examination following defense counsel’s attack during cross-
examination on the reliability and credibility of the prosecution’s principal witness concerning
the inconsistent exculpatory defense. Indeed, neither proposition is supported by the rationale of
Doyle and its progeny.
¶ 27. The dissent contends that our affirmance of defendant’s conviction violates
“clear” and “plain” precedent prohibiting the prosecution from commenting on silence, as
opposed to prior inconsistent statements. Post ¶¶ 51, 61. In fact, there is no such clear and plain
13
precedent. Indeed, the case law cited by the dissent in support of this proposition demonstrates
that the right on which the dissent relies is far more conditional and limited than the dissent
recognizes.
¶ 28. Several of the cases the dissent cites are distinguishable from the instant case
because they involved situations in which the prosecution commented on silence when there
were no prior inconsistent statements and/or no waiver of Miranda rights. For example, the
dissent cites multiple times to United States v. Canterbury, 985 F.2d 483 (10th Cir. 1993), a case
in which the defendant raised an entrapment defense at trial with respect to the charge of
unlawfully possessing an unregistered firearm. The prosecutor cross-examined the defendant
extensively as to why he did not inform police at the time he was arrested that he had been set
up. The court found a Doyle violation because the defendant’s “partial silence” after receiving
Miranda warnings did not “preclude him from claiming a violation of his due process rights
under Doyle” and because the few statements he made were “not inconsistent with his
entrapment defense.” Id. at 486; see also Laury, 985 F.2d at 1303 (finding Doyle violation
where, although defendant made post-arrest statements to police, he did not say anything that
“was inconsistent with” his alibi defense first raised at trial).
¶ 29. Another case cited by the dissent, Grieco v. Hall, 641 F.2d 1029 (1st Cir. 1981),
reveals some of the limits on the right upon which the dissent relies. In that case, the defendant
presented an exculpatory story at trial that was inconsistent with post-arrest statements he had
made. The prosecutor vigorously cross-examined the defendant as to why he did not present the
story to police at the police station after he was arrested. Rejecting the defendant’s claim of a
Doyle violation, the court noted that Doyle “does not establish a rule which gives rise to
constitutional error in every case in which the prosecutor refers to the defendant’s post-arrest
silence.” Id. at 1033. As the court stated, “once a defendant makes post-arrest statements that
may arguably be inconsistent with the trial story, inquiry into what was not said at arrest may be
14
designed not ‘to draw meaning from silence, but to elicit an explanation for a prior inconsistent
statement.’ ” Id. at 1034 (quoting Charles, 447 U.S. at 409).
¶ 30. In this case, following his arrest, defendant told police during DUI processing that
he had driven to his residence on the night in question. As the U.S. Supreme Court stated in
Charles: “Each of two inconsistent descriptions of events may be said to involve ‘silence’ insofar
as it omits facts included in the other version. But Doyle does not require any such formalistic
understanding of ‘silence’. . . .” Charles, 447 U.S. at 409. Here, the prosecutor’s challenged
question could be viewed as an attempt to “elicit an explanation for” defendant’s statements at
the time of his arrest that he drove his car, which were entirely inconsistent with his exculpatory
story presented to the jury at trial. Id.
¶ 31. In any event, given the unique circumstances of this case, we need not determine
if admission of the challenged testimony was error, insofar as we conclude that any error was
harmless beyond a reasonable doubt. As noted, “error in the admission of evidence does not
compel reversal of a criminal conviction where it is clear beyond a reasonable doubt that the
error was harmless, considered in light of the strength of the State’s case apart from the
offending evidence and the strength of the offending evidence itself.”4 Kinney, 2011 VT 74, ¶ 6;
see Chapman v. California, 386 U.S. 18, 24 (1967) (holding that constitutional error is harmless
where it can be “prove[d] beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained”). As indicated above, the evidence of defendant’s impairment
was very strong. The only defense to the DUI charge was defendant’s after-the-fact “I was not
driving” exculpatory story. That story was not reasonably plausible—as suggested by the twelve
minutes it took the jury to reach a guilty verdict—given the evidence presented in the case. Cf.
State v. Heller, 793 P.2d 461, 466 (Wash. Ct. App. 1990) (concluding that error in prosecutor’s
4
We do not suggest, as the dissent implies, that this standard is the equivalent of
determining whether the jury “could have” rendered a guilty verdict absent the claimed
constitutional error. Post, ¶ 63.
15
questioning of defendant regarding her failure to inform police of her exculpatory story before
trial was not harmless error because “story was reasonably plausible and not facially
unbelievable”); Canterbury, 985 F.2d at 487 (finding no harmless error because “this is not a
case where the defendant’s theory is ‘transparently frivolous’ and the evidence of guilt
overwhelming” (citation omitted)) .
¶ 32. Officer Weinisch testified that in walking up the twenty-yard-long driveway
behind defendant’s car as it was pulling into the driveway, he lost sight of all but the rear of the
car for only two to three seconds while the car turned into a parking spot behind the house.
Moreover, Officer Weinisch testified that he actually observed defendant exiting the driver’s seat
of the car. The jurors would have had to suspend disbelief to conclude that in those two to three
seconds defendant got out of the passenger side of the car, ran around the front of the car, took
the car keys from his cousin exiting the driver’s seat (who was somehow unseen by the officer as
he entered the residence), and then appeared to be getting out of the driver’s seat as Officer
Weinisch regained a full view of the car.
¶ 33. Officer Weinisch also testified that defendant told him immediately after being
confronted at the end of the driveway that no one else was driving his car that night. When
Officer Weinisch asked defendant if anyone else had driven his car, the officer was investigating
the hit-and-run accident, not a DUI. Defendant’s response to the officer was consistent with the
statements defendant made shortly thereafter during DUI processing after he waived his Miranda
rights. Thus, although defendant testified at trial that he told Officer Weinisch he was not the
driver, this is not a pure credibility contest. Cf. Kinney, 2011 VT 74, ¶¶ 12-13 (finding no plain
error in prosecutor’s comment regarding defendant’s credibility as to who had been operating his
ATV when it was stopped because “this was not a pure ‘credibility contest’ ” in that “the
circumstantial evidence that defendant was the operator of the ATV was overwhelming” (citation
omitted)) .
16
¶ 34. The most probative evidence on driver identity in this case, aside from Officer
Weinisch’s testimony, was defendant’s own statement during DUI processing after waiving his
Miranda rights indicating that he was driving his car on the night in question.5 Evidence of
defendant’s silence regarding driver identity from that time until trial had little probative value—
or potential prejudicial impact—and was merely cumulative with respect to the far more
probative evidence of his reaction and statements immediately before and after his arrest and
DUI processing. Cf. Brecht, 507 U.S. at 639 (concluding that prosecution’s reference to
petitioner’s post-Miranda silence regarding circumstances of shooting were cumulative and thus
had no substantial and injurious effect or influence in determining jury’s verdict, given
prosecution’s “extensive and permissible reference[] to petitioner’s pre-Miranda silence”
regarding circumstances of shooting). Indeed, if the jurors had believed defendant’s testimony
that he told Officer Weinisch he was not the driver, evidence of his failure to later inform police
of that fact would have had no probative value and no prejudicial impact.
¶ 35. Moreover, defendant’s Doyle argument is essentially based on the timing of
Officer Weinisch’s challenged trial testimony. Defendant, as well as his mother and cousin,
testified at trial that the cousin was driving defendant’s car on the night in question—and defense
counsel cross-examined those witnesses on that testimony without objection. The defense
presented the testimony of defendant’s cousin, defendant’s mother, and then defendant, each of
whom repeated on direct examination the same story—in the two to three seconds that the officer
could not see the passenger compartment of defendant’s car as it was pulling into the parking
spot behind the house, defendant exited the front passenger seat of his car and went around the
5
The dissent seeks to downplay this evidence, which severely undercut defendant’s story
at trial that he was not driving his car. In response to the officer’s questions asking defendant
where he was driving from and to, defendant answered from Maple Street (the scene of the
accident) into his driveway, thereby acknowledging that he was operating his vehicle on the
night in question. The dissent states that these answers did not amount to an admission that he
was operating his car at the time it was stopped. Even defendant does not make such an
argument. Construing defendant’s responses as not acknowledging he was driving his car would
“artfully blur[] the facts.” Post, ¶ 65, n.15.
17
front of the car to take his keys from his cousin, who had been driving the car but felt sick and
rushed into the house to throw up. Apart from the question of how this could have happened in
the two or three seconds that Officer Weinisch lost sight of the front of the car as it was pulling
into the parking space, the story is directly inconsistent with Officer’s Weinisch’s testimony that
he observed defendant exiting the driver’s seat of the car. Defendant also testified—contrary to
Officer Weinisch’s testimony—that he told Officer Weinisch that his cousin had been driving the
car and not him. But, as noted, that testimony was inconsistent with defendant’s own statement
made shortly after the stop during DUI processing that he was driving the car.
¶ 36. The prosecutor was entitled to cross-examine defendant by impeaching his prior
testimony that he told Officer Weinisch he was not the driver that night. See Charles, 447 U.S.
at 408 (stating that cross-examination inquiring into prior inconsistent statements “makes no
unfair use of silence because a defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent”); cf. United States v. Greer, 702 F.2d 651, 655
(7th Cir. 1983) (“Clearly, the state can cross-examine and comment when a defendant, prior to
his arrest, did not come forward with the exculpatory story of his trial testimony when he had
both the opportunity and good reason to do so.”). Indeed, defendant did not object to the
prosecutor’s cross-examination of the defense witnesses, including defendant, regarding their
version of what occurred that night. Cf. Jenkins v. Anderson, 447 U.S. 231, 234 (1980)
(“ ‘Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and
accurately, and the prosecution here [in cross-examining defendant about not reporting his claim
of self-defense to police after stabbing] did no more than utilize the traditional truth-testing
devices of the adversary process.’ ” (quoting Harris, 401 U.S. at 225)); Carter, 953 F.2d at 1465
(concluding that prosecutor’s questioning during cross-examination as to whether defendant had
ever told police about his exculpatory story offered at trial was not commenting on defendant’s
refusal to submit to interrogation but rather “on the improbability that [the defendant] would
18
languish for two and a half months in jail in possession of information that might, upon
investigation, have resulted in his release”). Following the close of defendant’s case, the
prosecutor could have offered essentially the same testimony that was objected to in the State’s
case in chief.
¶ 37. Because the only defense in this case was the “I was not the driver” defense, the
jury was going to hear, through cross-examination of the defense witnesses, evidence of
defendant’s inconsistent contemporaneous statement that he was driving, as well as Officer
Weinisch’s rebuttal testimony. This is not a situation, like the one in Mosher, where defendant’s
decision to testify may well have been influenced by Officer Weinisch’s answer to the one
challenged question on redirect. See 143 Vt. at 207, 465 A.2d at 266-67 (“It may well be that
[the defendant’s] ultimate decision to testify was influenced by the fact that some of the most
potentially damaging evidence against him had already come before the jury.”). Furthermore,
even if defendant had not testified, the evidence of defendant’s inconsistent statements would
have been admitted to rebut the testimony of defendant’s mother and cousin. Cf. United States
v. Caro, 637 F.2d 869, 876 (2d Cir. 1981) (“[E]ven if we thus assume arguendo that it was error
for the Government to introduce evidence of [the defendant’s] silence when it did, the error was
harmless beyond a reasonable doubt because the evidence could subsequently have been
introduced to rebut [the defendant’s] testimony that he was shocked to see the counterfeit notes
found in his suitcase.”).
¶ 38. For all of the above reasons, we conclude that any error in allowing the
challenged question on redirect examination of Officer Weinisch was harmless beyond a
reasonable doubt.
19
IV. Opening and Closing Statements
¶ 39. Defendant also argues that the prosecutor made a number of impermissible
comments during his opening statement and closing argument. Because defendant did not object
to any of these comments at trial, we examine them for plain error. State v. Fellows, 2013 VT
45, ¶ 16, 194 Vt. 77, 76 A.3d 608. Comments made by the prosecutor during opening statement
or closing argument “will not amount to plain error unless they are so manifestly and egregiously
improper that there is no room to doubt the prejudicial effect.” Id. ¶ 20 (quotation omitted).
Defendant has not satisfied that rigorous standard here.
¶ 40. Defendant first points, once again, to comments made by the prosecutor with
respect to defendant’s failure to tell police prior to trial that he was not driving his car on the
night in question. To fully explain why we find no plain error as to these comments, we set forth
the origin of defendant’s driver-identity defense and reiterate how it unfolded at trial.
¶ 41. Defendant first raised the “I was not the driver” defense at a hearing on his
motion to suppress held approximately one month before trial. Although his motion was
directed at the alleged unreasonableness of the stop, his principal trial defense became clear.
Towards the end of defense counsel’s cross-examination of Officer Weinisch at the motion
hearing, the officer explained the length and layout of the driveway and confirmed his previous
testimony on direct examination that he saw only defendant exit defendant’s car and that
defendant told him that he was the only person who had driven the car that evening. Defendant
then presented the testimony of his mother, who stated, as she later did at trial, that defendant’s
cousin, not defendant, was driving defendant’s car on the night in question. The prosecutor
cross-examined defendant’s mother as to why she did not tell Officer Weinisch that defendant’s
cousin was driving the car the night of the accident. On rebuttal, Officer Weinisch reiterated that
defendant was the only person who exited the car, that defendant told him no one else had driven
the car that evening, and that defendant never indicated that his cousin was driving the car.
20
Defendant neither objected to this testimony nor filed a motion in limine to exclude the
testimony at trial.
¶ 42. Thus, one month later at the trial, the State was aware that defendant’s three
witnesses, including defendant, were going to testify that defendant had not been driving his car
at the time of his encounter with Officer Weinisch. In his opening statement, the prosecutor
explained to the jurors that he wanted to give them “some picture of the evidence” they were to
hear that day. Toward the end of his statement, the prosecutor told the jury that defense
witnesses were going to testify that in the few seconds that Officer Weinisch lost sight of
defendant’s car, notwithstanding that the officer would testify he observed defendant exit the
vehicle, “somebody else actually jumped out of the driver’s seat and ran inside the house before
Officer Weinisch made it all the way up the driveway.” The prosecutor then stated: “The
evidence will show that neither on that night, nor in the months that have passed since the arrest,
until about one month ago, at no time did the defendant or his mother call the Burlington Police
Department to tell them that somebody else was driving.” The prosecutor told the jury that it
was their “job as jurors to assess the credibility of all of the witnesses you see here today.”
¶ 43. Rather than objecting to any of these comments, defense counsel reiterated to the
jurors in her opening statement that, as the prosecutor had just told them, they would hear
inconsistent accounts of what happened on the night in question, and specifically, that they
would hear why none of the defense witnesses reported to police that it was actually defendant’s
cousin who was driving that night.
¶ 44. During closing argument following the presentation of evidence, the prosecutor
referred to Officer Weinisch’s testimony that he observed defendant in the process of exiting the
driver’s seat and that defendant told him he had driven his car from the scene of the hit-and-run
accident to his mother’s house and that nobody else had driven his car that night. The prosecutor
acknowledged the defense witnesses’ exculpatory story, but stated: “You heard Officer Weinisch
21
testify that neither on that night nor in the months following the incident, did the defendant or
any of defendant’s family tell him that anybody besides the defendant was driving the vehicle.”
The prosecutor further acknowledged defendant’s testimony that he told Officer Weinisch he
was not driving that night, but noted that defendant did not complain to “the Burlington Police
Department regarding the alleged misconduct of Officer Weinisch.”
¶ 45. Again, given the unique circumstances of this case and for the reasons set forth
above, we find no plain error in the prosecutor’s comments. Although a suspect is not required
to provide an exculpatory explanation to police, that does not mean that the State is “precluded
from using a suspect’s lack of explanation prior to arrest to rebut an explanation offered by the
defense at trial.” State v. Longley, 2007 VT 101, ¶ 26, 182 Vt. 452, 939 A.2d 1028; cf.
Portuondo v. Agard, 529 U.S. 61, 69 (2000) (acknowledging prior case law prohibiting
prosecutor’s comments suggesting that silence was evidence of guilt, but citing “longstanding
rule that when a defendant takes the stand, his credibility may be impeached and his testimony
assailed like that of any other witness” (quotation omitted)); State v. Marshall, 334 P.3d 866,
871-72 (Kan. Ct. App. 2014) (stating that when defendant testifies at trial, “ ‘his credibility may
be impeached and his testimony assailed like that of any other witness,’ ” and thus finding no
Doyle violation where prosecutor commented during closing argument on defendant’s failure to
mention to police, until after DNA testing was done, that he was performing medically necessary
procedure on sexual-assault victim (quoting Brown v. United States, 356 U.S. 148, 154 (1958))).
¶ 46. Defendant also cites as impermissible the prosecutor’s comments suggesting to
the jury that defendant did not want to be accountable for his actions and questioning what
motivation Officer Weinisch would have for lying under the circumstances. The prosecutor’s
accountability statements were both extremely brief and followed immediately by a summation
of the evidence regarding driver identity. As for the motivation comment, the prosecutor cited
the evidence and asked the jurors to ask themselves what motive Officer Weinisch would have
22
had for indicating in his report that defendant had acknowledged he was driving if in fact he had
told the officer that his cousin was driving. The prosecutor was suggesting that Officer Weinisch
should be believed because of the evidence presented at trial—which included defendant’s
contemporary written acknowledgment of being the driver—not because he was a police officer.
Immediately before summarizing the evidence, the prosecutor told the jurors that it was their
“job as jurors to assess the credibility of all the witnesses you see here today. It’s in your hands
to decide what you believe and what you don’t believe.” Again, we find no plain error.
¶ 47. The other statements that defendant cites on appeal were the prosecutor’s
suggestions that defendant’s membership in the Vermont National Guard and the fact that he
lived with his mother and paid some of the household expenses may have motivated him and his
mother to fabricate the story about the cousin driving. The prosecutor suggested, while
acknowledging that he did not know, that defendant might be concerned about how a conviction
could affect his status in the Vermont National Guard and that his mother might be concerned
that a conviction could affect her son’s support for the household.
¶ 48. Although defendant testified on direct examination that he was a member of the
Vermont National Guard, and his mother testified that defendant lived with her and paid some
household expenses, it was speculative for the prosecutor to suggest that these facts may have
motivated them to fabricate the driver-identity story. See State v. Reynolds, 2014 VT 16, ¶ 16,
196 Vt. 113, 95 A.3d 973 (“The general rule is that counsel should confine argument to the
evidence of the case and inferences that can properly be drawn from it.” (quotation omitted));
State v. Billado, 141 Vt. 175, 183-84, 446 A.2d 778, 783 (1982) (stating that “it is not prejudicial
to argue fabrication as long as the evidence supports the argument”). But these qualified
comments “do not rise to the level of fundamental misconduct required by the ‘plain error’
standard.” Reynolds, 2014 VT 16, ¶ 35.
23
¶ 49. “A defendant seeking reversal of a conviction based on an allegedly improper
closing argument must show not only that the prosecutor’s argument was improper, but also that
it impaired the defendant’s right to a fair trial.” State v. Hemond, 2005 VT 12, ¶ 11, 178 Vt.
470, 868 A.2d 734 (quotations omitted). Defendant has failed to do that here. Cf. State v.
Rehkop, 2006 VT 72, ¶ 38, 180 Vt. 228, 908 A.2d 488 (finding plain error, despite rigorous
standard, where prosecutor attempted “to undermine the credibility of the defense witnesses by
purporting to quote from transcripts not in evidence,” by stating that “the defense witnesses lied
under oath,” and by representing “that he would have considered charging the defense witnesses
with perjury”).
V. Reasonable Doubt Instruction
¶ 50. Finally, defendant argues that the trial court’s attempt to define reasonable doubt
by stating in part that the jury must have “great certainty”—as opposed to “utmost certainty”—
amounted to structural error that requires reversal. We recently rejected the same argument with
respect to the same instruction given by the same judge. State v. Levitt, 2016 VT 60, ¶¶ 5-13,
___ Vt. ___, 148 A.3d 204.
Affirmed.
FOR THE COURT:
____________________________________
Associate Justice
¶ 51. SKOGLUND, J., dissenting. The majority improperly conflates a prosecutor’s
ability to impeach a defendant using the defendant’s post-Miranda statements with prosecutorial
comments intended to elicit meaning from a defendant’s post-Miranda silence. No caselaw
supports this conflation; rather, all of the relevant precedent makes clear that commenting on a
defendant’s post-Miranda silence in this manner is a violation of due process. In this case,
moreover, the use of defendant’s silence was especially egregious because the State employed it
24
as evidence of guilt in its opening statement, case in chief, and closing argument. Such an error
is not harmless. Not only did the evidence of defendant’s silence directly attack the only
disputed element of the charge, but every court that has confronted a similar constitutional error
has concluded that it was not harmless, including this Court. I dissent.
I. Defendant’s Fifth and Fourteenth Amendment Rights
¶ 52. A defendant’s post-Miranda silence generally cannot be used. See United States
v. Moore, 104 F.3d 377, 387 (D.C. Cir. 1997). This rule grew from Fifth Amendment
jurisprudence, which “forbids . . . comment by the prosecution on the accused’s silence.” Griffin
v. California, 380 U.S. 609, 615 (1965). Although Griffin involved a prosecutor’s comment
during trial about the defendant’s failure to testify, the Supreme Court subsequently held that the
rule extends backward to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 468 n.37
(1966) (“The prosecution may not, therefore, use at trial the fact that he stood mute or claimed
his privilege in the face of accusation.” (citing Griffin, 380 U.S. 609)). Indeed, the prophylactic
warnings proscribed in Miranda were intended to inform individuals that the constitutional
prohibition against using a defendant’s silence attaches at the time of custodial interrogation and
that any statements made could be used against the individual. Miranda, 384 U.S. at 444.
¶ 53. In the foundational case examining the use of silence for impeachment, Doyle v.
Ohio, the U.S. Supreme Court held that a prosecutor could not use a defendant’s post-Miranda
silence to impeach the defendant. 426 U.S. 610, 619 (1976). In Doyle, the defendants were
arrested for participating in a routine marijuana deal and given Miranda warnings. After
Miranda warnings were given, the defendants did not provide an alternative explanation for their
behavior or protest their innocence, but one defendant asked what was going on. At trial, they
took the stand and offered, for the first time, an exculpatory explanation for their participation in
the deal. The State argued that it could impeach their testimony on cross-examination by asking
the defendants why they had not provided their exculpatory stories or protested their innocence
25
at the time of their arrest. The State did not contend that the defendants’ silence could be used as
evidence of guilt, but argued that the truth-finding purpose of cross-examination justified the use
of the defendants’ silence. The Supreme Court rejected this position. Id. at 618. In doing so, the
Supreme Court acknowledged the fundamental importance of cross-examination, but concluded
that Miranda warnings contained an implicit assurance that a defendant’s silence would not be
penalized. Id. Given this implicit guarantee, the Supreme Court emphasized that “it would be
fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be
used to impeach an explanation subsequently offered at trial.” Id. at 618. As a result, the use of
defendant’s silence in these circumstances violated the Due Process Clause of the Fourteenth
Amendment.6 Id. at 619.
¶ 54. Subsequently, the Supreme Court made clear that the due process concerns
articulated in Doyle do not preclude prosecutors from impeaching defendants with their post-
Miranda statements in certain limited circumstances.7 In Anderson v. Charles, the Supreme
Court held that “Doyle does not apply to cross-examination that merely inquires into prior
inconsistent statements” made after the defendant received Miranda warnings. 447 U.S. 404,
408 (1980) (per curiam). Impeachment using these statements is permissible because “such
questioning makes no unfair use of silence.” Id. That is, instead of being “designed to draw
6
Critically, the Doyle decision rested on due process grounds, not on the Fifth
Amendment privilege against self-incrimination. See Wainwright v. Greenfield, 474 U.S. 284,
291 n.6 (1986); see also Salinas v. Texas, __ U.S. __, 133 S. Ct. 2174, 2182 n.3 (2013) (plurality
opinion) (concluding that suspect who stands mute has not done enough to invoke his Fifth
Amendment privilege, but noting “that due process prohibits prosecutors from pointing to the
fact that a defendant was silent after he heard Miranda warnings” (citing Doyle, 426 U.S. at 617-
18)).
7
Use of defendant’s prearrest silence for impeachment purposes is permissible. See
Jenkins v. Anderson, 447 U.S. 231, 235, 238-39 (1980) (holding that impeaching defendant’s
credibility using his or her prearrest silence did not violate either Fifth Amendment’s privilege
against self-incrimination or fundamental fairness concerns embodied in Fourteenth
Amendment).
26
meaning from silence,” such questions are intended to “elicit an explanation for a prior
inconsistent statement” and thus are not unfair uses of silence. Id. at 409.
¶ 55. In the following years, the circuit courts refined the application of this rule,
uniformly concluding that, although a prosecutor may cross-examine a defendant about the
subject matter of his statements made post-Miranda, the prosecutor may not draw meaning from
the defendant’s post-Miranda silence, even if the defendant spoke after receiving Miranda
warnings.8 As a result, whether a Doyle violation occurred hinges on the State’s use of the
defendant’s post-Miranda silence, not whether the defendant spoke after receiving Miranda
warnings. For example, in United States v. Canterbury, the Tenth Circuit noted that, although
the defendant answered some questions after receiving Miranda warnings, his “partial silence”
did not “preclude him from claiming a violation of his due process rights under Doyle.” 985
F.2d 483, 486 (10th Cir. 1993). The court then looked to the intent of the prosecutor’s questions
during cross-examination, particularly a question focusing on the defendant’s failure to tell the
police that he had been set up.9 Id. at 485. Because this question was not directed to the
8
This is a formulation adopted by all of the circuit courts. See, e.g., United States v.
Ware, 420 F. App’x 886, 892-93 (11th Cir. 2011) (finding no error “[b]ecause the question did
not address [defendant’s] failure to offer exculpatory evidence upon arrest, but rather simply
addressed the context of [defendant’s] statement on arrest”); United States v. Laury, 985 F.2d
1293, 1303-04 (5th Cir. 1993) (“Nevertheless, we held in Carter that a Doyle violation does
occur where the prosecution comments on the defendant’s failure to give an alibi prior to trial but
subsequent to arrest.”); Smith v. Cadagin, 902 F.2d 553, 559 (7th Cir. 1990) (“The defendant, by
the degree of expansiveness of his post-arrest statement, defines the permissible subject matter of
any later cross-examination.”); Bass v. Nix, 909 F.2d 297, 304 (8th Cir. 1990) (“The key to the
inquiry has always been whether the impeachment was based on post-arrest statements
contradicting later trial testimony or whether the impeachment was based on silence
contradicting later trial testimony. . . . Doyle applies when, as in the instant case, the
impeachment was based on silence.” (citation omitted)); Grieco v. Hall, 641 F.2d 1029, 1034
(1st Cir. 1981) (“This does not mean that any time a defendant makes any post-arrest statement
the door is open to full cross-examination about the defendant’s failure to recount the
exculpatory trial story earlier.”); United States v. Curtis, 644 F.2d 263, 271 n.4 (3d Cir. 1981)
(concluding Doyle violation occurred because “cross examination was not directed to any prior
statement, but solely to post-arrest silence”).
9
The specific question to the defendant was as follows: “[I]sn’t it—I’ll just rephrase it.
Isn’t it a fair statement that at no time after your arrest on August 29, either at the Burger King or
27
defendant’s post-Miranda statements, but “was designed to suggest an inference of guilt from the
defendant’s post-arrest silence,” the court concluded that a Doyle violation occurred. Id. at 486.
¶ 56. In addition to the importance of determining if the prosecutor intended to infer
guilt from the defendant’s silence, subsequent precedent also makes clear that the State’s use of a
defendant’s post-Miranda silence as affirmative proof is an especially offensive violation of due
process rights. In Wainwright v. Greenfield, the prosecution attempted to use the defendant’s
post-Miranda silence as substantive evidence of the defendant’s sanity. 474 U.S. 284, 288-87
(1986). The Supreme Court held that this use violated the defendant’s due process rights. Id. at
295. In doing so, the Supreme Court reviewed its precedent and found that, “unlike Doyle and
its progeny, the silence was used as affirmative proof in the case in chief, not as impeachment.”
Id. at 292. Such a use was “especially egregious,” because, unlike Doyle, there was no danger
that the prosecution’s ability to cross-examine the defendant would be undercut by a rule
protecting the use of the defendant’s silence during the State’s case in chief. Id. at 292 n.8.
Moreover, the Supreme Court concluded that the fundamental fairness concerns underlying
Doyle applied equally when the prosecutor affirmatively used the defendant’s post-Miranda
silence to prove his or her sanity. Id. at 295.
¶ 57. Thus, to summarize the current law, the prohibition against using a defendant’s
post-Miranda silence grew from the core privilege against self-incrimination guaranteed by the
Fifth Amendment, Griffin, 380 U.S. at 615, but now rests on the implicit assurances guaranteed
by Miranda warnings and protected by the Due Process Clause. Wainwright, 474 U.S. at 295.
Because the use of a defendant’s post-Miranda silence is fundamentally unfair, a prosecutor may
not draw meaning from a defendant’s post-Miranda silence, either during cross-examination or
as substantive evidence in its case in chief, even if the defendant spoke after receiving Miranda
at the police station, did you ever state to the police officer I’ve been set up?” Canterbury, 985
F.2d at 485.
28
warnings.10 Moreover, if the prosecutor improperly employs the defendant’s silence in its case
in chief, that use is especially egregious.
¶ 58. Given this precedent, the State’s use of defendant’s post-Miranda silence in this
case was error for several reasons. First, the State raised defendant’s post-Miranda silence
during its case in chief, on redirect examination of the officer.11 As described above, the relevant
caselaw is directly contrary to the proposition that the State may use a defendant’s silence as
affirmative proof in this manner, even if the defendant spoke after receiving Miranda statements.
In Doyle, one of the defendants spoke after receiving Miranda warnings, but the Supreme Court
still concluded that “it would be fundamentally unfair . . . to allow the arrested person’s silence
to be used to impeach an explanation subsequently offered at trial.” Doyle, 426 U.S. at 618.
Indeed, in State v. Mosher, this Court expressly focused on the prosecutor’s “use of defendant’s
silence during its case in chief,” Mosher, 143 Vt. 197, 205 n.2, 465 A.2d 261, 266 n.2 (1983),
and we concluded that it was “error for the State to use defendant’s silence as substantive
evidence of guilt.” Id. at 205, 465 A.2d at 266. Now, the majority abandons our former position
merely because the State’s substantive use occurred during redirect examination, without
explaining why the implicit promise contained in Miranda carries less weight during redirect
examination than if elicited during direct examination.
10
As described above, a prosecutor may impeach a defendant using the inconsistent
statements he or she made after receiving Miranda warnings. See Jenkins, 447 U.S. at 238-39.
11
The majority claims, without citing to any precedent, that, because defendant’s
counsel raised the exculpatory version of events in a suppression hearing prior to trial, the State
was aware of defendant’s trial strategy and, as a result, at trial, could comment on defendant’s
silence prior to defendant presenting his exculpatory story. But defendant did not testify at the
suppression hearing and, thus, any comments regarding his silence were first raised by the State
in its opening statement. Second, even if defendant did testify at the suppression hearing, it is
well-settled that “when a defendant testifies in support of a motion to suppress evidence . . . his
testimony may not thereafter be admitted against him a trial on the issue of guilt unless he makes
no objection.” Simmons v. United States, 390 U.S. 377, 394 (1968) (emphasis added).
29
¶ 59. Moreover, even if the majority is correct that, because redirect examination is
rehabilitative in nature, it is legally distinct from producing evidence on direct examination, the
State did not confine its “rehabilitative” question to the statements defendant made during his
DUI processing. Instead, the prosecutor’s question “was designed to suggest an inference of
guilt from . . . defendant’s post-arrest silence” during the months leading up to trial. See
Canterbury, 985 F.2d at 486. Because of this improper inference, if the prosecutor had asked
defendant this question at any point during the trial,12 it would have violated Doyle.
¶ 60. On redirect examination of Officer Weinisch, the State asked the officer, “In the
three months following this investigation, did the defendant or any of the defendant’s friends or
relatives, ever call you or the Burlington Police Department, to your knowledge, to indicate that
somebody else was driving that night?” Plainly, this question was intended to draw meaning
from defendant’s silence and was not focused on the statements defendant made during his DUI
processing. A similarly improper question occurred in Laury, 985 F.2d at 1301. As in this case,
the defendant in Laury stated on cross-examination that, although he did not provide an alibi
prior to arrest, he did inform the police that he didn’t commit the charged crime. The Fifth
Circuit concluded that cross-examination into the statements he made during his arrest was
proper. Id. at 1302 (citing Jenkins, 447 U.S. at 240). But the prosecutor also asked the
12
In fact, the State did attempt to pursue the same improper questioning in its cross-
examination of defendant:
STATE. You never protested, correct?
DEFENDANT. Correct
STATE. And after that night, and the last three months, you—did
you ever file a complaint with the Burlington Police Department?
DEFENDANT. I had not.
STATE. Did you ever call the Burlington Police Department to
complain about Officer Weinisch’s conduct?
DEFENDANT. No.
STATE. And in fact, today is the first time that you, yourself had
made any kind of public statement?
At this point, defense counsel objected on Doyle grounds, and the court sustained
defendant’s objection.
30
defendant why he hadn’t provided his alibi either immediately following his arrest or in the
months leading up to trial. The Fifth Circuit held that both of these subsequent questions
violated Doyle, even though the defendant made post-Miranda statements to government agents.
Id. at 1303-04, 1305. In doing so, the Fifth Circuit acknowledged the distinction between the
prosecutor’s ability to cross-examine a defendant about the subject matter of his post-Miranda
statements and the prosecutor’s use of a defendant’s post-Miranda silence to imply guilt. Id. As
described above, federal court precedent has clearly established that the first is permitted, while
the latter is not. See also State v. Hunt, 150 Vt. 483, 500, 555 A.2d 369, 380 (1988) (noting that
“the prosecutor may comment to the jury, and use for impeachment, inferences from the
statements which [the defendant] made of his own volition” (emphasis added)).
¶ 61. Despite this plain precedent, the majority position allows the State unfettered use
of a defendant’s silence as long as the defendant spoke after receiving Miranda warnings. This is
simply not the law.13 The question is whether “[t]he questions were . . . designed to draw
13
Even the majority relies on precedent that explicitly acknowledges this fundamental
distinction between the improper use of a defendant’s post-Miranda silence as affirmative proof
and the limited exceptions that allow the use of a defendant’s post-Miranda statements as
impeachment evidence. For example, in Brecht v. Abrahamson, the Supreme Court noted that
the State could impeach defendant on the basis of the defendant’s silence prior to receiving
Miranda warnings, but that once the defendant received Miranda warnings, “the State’s
references to petitioner’s silence after that point in time, or more generally to petitioner’s failure
to come forward with his version of events at any time before trial, crossed the Doyle line.” 507
U.S. 619, 628-29 (1993) (emphasis added); see also Salinas, 133 S. Ct. at 2179, 2182 n.3
(declining to address whether prosecution could use defendant’s pre-Miranda silence during
noncustodial police interview as part of its case in chief, but noting “that due process prohibits
prosecutors from pointing to the fact that a defendant was silent after he heard Miranda
warnings”); Portuondo v. Agard, 529 U.S. 61, 69 (2000) (“Griffin prohibited comments that
suggest a defendant’s silence is ‘evidence of guilt.’ The prosecutor’s comments in this case, by
contrast, concerned respondent’s credibility as a witness, and were therefore in accord with our
longstanding rule that when a defendant takes the stand, ‘his credibility may be impeached and
his testimony assailed like that of any other witness.’ ” (citations omitted)); United States v.
Carter, 953 F.2d 1449, 1463-64 n.6 (5th Cir. 1992) (analyzing government’s comments made
during cross-examination, but noting, “[u]se of post-arrest silence for its substantive value is . . .
prohibited” (emphasis added)); State v. Marshall, 334 P.3d 866, 871-72 (Kan. Ct. App. 2014)
(“Rather than a comment on [the defendant’s] silence, it is apparent that here the State is using
the incriminating statements made . . . to impeach [the defendant’s] claim . . . .” (emphasis
added)).
31
meaning from silence” or “to elicit an explanation for a prior inconsistent statement.” Charles,
447 U.S. at 409. In this case, the State’s clear intent was to draw meaning from defendant’s
silence, because defendant did not make any statements at all during those months leading up to
trial. Such use of defendant’s silence violated Miranda’s implicit assurance that his silence
would not be used against him. See Brecht, 507 U.S. at 628-29 (“[T]he State’s references to
petitioner’s silence after [receiving Miranda warnings], or more generally to petitioner’s failure
to come forward with his version of events at any time before trial, crossed the Doyle line.”
(emphasis added)). This was error, and should not stand.
II. Harmless Error
¶ 62. Further, this error was not harmless because the error affected defendant’s
substantial rights. See V.R.Cr.P. 52(a) (“Any error, defect, irregularity or variance which does
not affect substantial rights shall be disregarded.”). Error is harmless if we can say beyond a
reasonable doubt that the jury would have convicted absent the error. See State v. Lynds, 158
Vt. 37, 42, 605 A.2d 501, 503 (1991); see also V.R.Cr.P. 52(a).
¶ 63. To begin, contrary to the majority’s claim, the appropriate standard for
considering whether a Doyle violation was harmless error does not depend solely on “the
strength of the State’s case apart from the offending evidence and the strength of the offending
evidence itself.” State v. Kinney, 2011 VT 74, ¶ 6, 190 Vt. 195, 27 A.3d 348. As the Third
Circuit recently reiterated in its analysis of a potential Doyle violation, “[C]onstitutional
harmless-error analysis is not merely a review of whether the jury ‘could have’ returned a verdict
absent the constitutional error. Such an analysis improperly conflates sufficiency-of-the-
evidence review with the appropriate [harmless error] standard.” Virgin Islands v. Martinez, 620
F.3d 321, 338 (3d Cir. 2010). Although “the quantum of other evidence indicative of guilt” is
one of the factors to be considered, the other four factors include,
1. The use to which the prosecution puts the postarrest silence.
2. Who elected to pursue the line of questioning.
32
...
4. The intensity and frequency of the reference.
5. The availability to the trial judge of an opportunity to grant a
motion for mistrial or to give curative instructions.
Canterbury, 985 F.2d at 487 (quotation omitted); see also Mosher, 143 Vt. at 209-10, 465 A.2d at
268 (analyzing Doyle violation for harmless error based on “whether the comment by the
prosecution is extensive, whether the inference of guilt from silence is stressed to the jury as a
basis of conviction and whether there is evidence that could have supported acquittal”).
“Moreover, the beneficiary of the error, here the State, has the burden of proving that no injury
occurred as a consequence of the error.” Mosher, 143 Vt. at 208, 465 A.2d at 267.
¶ 64. In this case, because the “mere great weight of evidence of guilt will not obviate a
constitutional error,” id., the majority’s focus on the sufficiency of the evidence and, in
particular, whether it was plausible, is inadequate.14 By ignoring the other factors described
above, the majority does not fully consider whether the evidence in question contributed to the
conviction. See id. (“The evidence in question must not have contributed to the conviction.”
(emphasis added)). This is especially true because the other factors dictate that the error was not
harmless. For example, the State elected to pursue defendant’s silence first and the trial court did
not give a curative instruction to the jury.
¶ 65. Most important, the State frequently used defendant’s silence to guide the jury’s
consideration of the core issue disputed at trial: the driver’s identity. To convict defendant of
driving under the influence, the State needed to prove that defendant operated his vehicle. See
14
The majority claims that, given the evidence, the State’s comments were harmless
error because defendant’s story was not “reasonably plausible.” Ante, ¶ 31. This argument
depends on a questionable assumption: the majority assumes the officer testified truthfully and
accurately regarding the driver’s identity and that the other three witnesses testified falsely. By
making this assumption, moreover, the majority improperly conducts its own credibility
determination in lieu of the jury and opines on the persuasive effect of the witnesses and
testimony. Cf. State v. Parker, 139 Vt. 179, 182, 423 A.2d 851, 852 (1980) (“The trier of fact
has the sole determination concerning the weight of the evidence, the credibility of the witnesses
and the persuasive effect of the testimony.” (citation omitted)).
33
23 V.S.A. § 1201(a)(1). Most of the evidence cited by the majority, circumstantial or otherwise,
did not point to the vehicle’s operator. The only evidence the State submitted to prove that
defendant drove the car was the testimony of the investigating officer and the DUI affidavit.15
This evidence was countered by the testimony from defendant’s mother, cousin, and defendant
himself. Thus, in order to establish who operated the vehicle and to find defendant guilty, the
jury must have determined that the officer was more credible than the defense witnesses.
¶ 66. To bolster the officer’s credibility, the State attempted to discredit defendant’s
exculpatory version of the events by commenting on defendant’s silence. Specifically, the State
made four direct references to defendant’s silence.
¶ 67. First, the State told the jury in its opening statement that “neither on that night,
nor in the months that have passed since the arrest, until about one month ago, at no time did the
defendant . . . call the Burlington Police Department to tell them that somebody else was
driving.”
¶ 68. Next, after defendant’s cross-examination of the officer established that the
officer did not actually see the car’s operator and that he lost sight of the vehicle for several
seconds on defendant’s driveway, the State used defendant’s pretrial silence to attack
defendant’s claim that defendant’s cousin drove the car that night. Specifically, the prosecutor
asked the investigating officer if defendant had ever, in the months leading up to the trial, called
the officer or the Burlington Police Department to “indicate that somebody else was driving that
15
The majority claims that defendant admitted to driving the car, but this statement
artfully blurs the facts. Ante, ¶ 22. The officer testified that defendant answered three questions
listed on the DUI affidavit: “Where were you driving to?”, “Where were you driving from?”, and
“How long ago did you drive from that location?” As the officer acknowledged, none of the
questions specifically asked whether defendant operated the vehicle and defendant never actually
said that he operated the car, although defendant’s oral answers to the written questions
suggested that he had driven the car. Moreover, the officer and defendant disagreed about the
oral statements defendant made pre-Miranda warnings: the officer claimed defendant admitted to
driving the car, but defendant testified that he responded negatively when the officer asked him if
he operated the car.
34
night?” Defendant objected to this line of questioning, pointing out that defendant had no
obligation under the Fifth Amendment to provide an exculpatory story to the police. The trial
court overruled defendant’s objection, and the officer testified that defendant never told him that
someone else was driving the vehicle or contacted the police department.
¶ 69. Third, while cross-examining defendant, the State focused on defendant’s failure
to further protest his arrest and his failure to tell the police during the months leading up to trial
that his cousin drove the car. In particular, the State asked whether, “after that night, and the last
three months . . . [defendant] ever file[d] a complaint with the Burlington Police Department”
and pointed out that the trial was “the first time that [defendant] . . . , made any kind of public
statement.” At this point, defendant objected again and the trial court sustained the objection,
apparently recognizing the constitutional rights the majority erroneously rejects.
¶ 70. Finally, in the closing arguments, the State highlighted the officer’s testimony and
again noted “that neither on that night, nor in the months following that incident, did the
defendant or any of defendant’s family tell [the officer] that anybody besides the defendant was
driving the vehicle.”
¶ 71. Together these statements demonstrate that defendant’s post-Miranda silence was
a central theme of the State’s case and aimed at influencing the jury’s credibility determination.
The State’s comments about defendant’s post-Miranda silence were extensive, continued
throughout the proceeding, and were a direct attack on defendant’s credibility. The State
implied, in all of these instances, that defendant was guilty because defendant failed to provide
his exculpatory story at arrest and in the months prior to his trial. As described above, these
comments violated settled law. See, e.g., Canterbury, 985 F.2d at 486. Moreover, when
evaluating whether Doyle violations influenced a jury’s deliberations, appellate courts—and
even this Court—have concluded that frequent comments of this nature are not harmless error if
the defense’s case heavily depends on the defendant’s credibility. Compare Mosher, 143 Vt. at
35
208, 465 A.2d at 267 (finding error was not harmless where State’s case turned on credibility of
witnesses and prosecutor’s extensive comments stressed inference of guilt from silence), with
Kinney, 2011 VT 74, ¶ 13 (finding no error where prosecutor drew inferences from statements
defendant made during his arrest but neither commented on defendant’s post-Miranda silence nor
raised defendant’s silence in opening remarks). For example, in Canterbury, the Tenth Circuit
concluded that the Doyle violation was not harmless beyond a reasonable doubt because the “the
success of the defense hinged almost entirely on the defendant’s credibility.” 985 F.2d at 487;
see also Velarde v. Shulsen, 757 F.2d 1093, 1096 (10th Cir. 1985) (concluding chance of
prejudice greater when comment on silence occurs in one-day trial, with no curative instruction);
United States v. Shannon, 766 F.3d 346, 359 (3d Cir. 2014) (concluding error was not harmless
where “credibility was likely important to the outcome of the case”).
¶ 72. Despite this clear precedent, the majority concludes that the error was harmless
because defendant’s post-Miranda statements ultimately would have been admitted to impeach
the statements defendant made during his arrest or to rebut the other witnesses’ testimony.16
Ante, ¶¶ 35-36. To reiterate, this is an incorrect summation of the law. The State’s use of
defendant’s statements do not form the basis for the Doyle violation; the error was the State’s use
of his silence. Because that error was frequent and aimed at undermining defendant’s credibility
regarding a crucial element of the charge, it was not harmless beyond a reasonable doubt.
¶ 73. I am authorized to state that Justice Robinson joins this dissent.
Associate Justice
16
In addition to the other errors described, this argument ignores precedent from this
Court explicitly rejecting this “relation-back doctrine” of impeachment. In Mosher, we noted
that such an argument “assumes without basis that the defendant would inevitably have taken the
stand in his own defense” and thus concluded that the State’s early introduction of the evidence
could have compelled the defendant to testify and defend himself in violation of the Fifth
Amendment. 143 Vt. at 207, 465 A.2d at 267.
36