U.S. v. Earl, 75--1275

• Decision Date: 10 February 1976
• Docket Number: No. 75--1275,75--1275
• Citation: 529 F.2d 1145
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William E. EARL and James Lavelle Cupit, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1145

529 F.2d 1145

UNITED STATES of America, Plaintiff-Appellee, v. William E. EARL and James Lavelle Cupit, Defendants-Appellants.

No. 75--1275.

United States Court of Appeals Sixth Circuit.

Argued Dec. 1, 1975.

Decided Feb. 10, 1976.

Charles A. Saladino, Paducah, Ky. (Court appointed CJA), for defendants-appellants.

George J. Long, U.S. Atty., James H. Barr, Ronald E. Bogle, Asst. U.S. Attys., Louisville, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Defendants-appellants Earl and Cupit were convicted on a jury verdict in district court of transporting on February 12, 1974, from Tennessee to Kentucky one Page whom they allegedly had previously kidnapped for robbery. 18 U.S.C. § 1201 (Supp. IV 1974). Earl and Cupit were sentenced to life imprisonment.

Briefly, the undisputed facts are that Page, a serviceman, was returning by automobile to Fort Campbell from a music clinic in Dyersburg, Tennessee. Page offered appellants, then walking alongside the highway, or perhaps 'hitchhiking,' a ride, which they accepted. The government theory, as implicitly credited in the jury verdict, is that appellants at knifepoint seized control of Page's automobile in Tennessee, crossed into Kentucky, and bound Page with adhesive tape, leaving him bound and barefoot in a corn shed, or 'barn,' near Bardwell, Kentucky. Appellants contend, however, that after Page gave them a ride Page unsuccessfully made homosexual advances toward Cupit. The defense claims that Page, then barefoot, got out of his automobile with the threat that he was 'going to the police (to) holler kidnap.' Appellants admit that thereafter they drove Page's automobile from near Bardwell until their apprehension later February 12, 1974, near Mount Vernon, Illinois.

On appeal, appellants claim that the district court committed reversible error in admitting into evidence as exhibits certain tangible objects and the advice-of-rights forms appellants signed following their apprehension. We consider the admission of the advice-of-rights forms, and especially accompanying references in the transcript to appellants' pre-trial silence, to be the more serious of the claimed errors.

Though appellant's brief points only to the admission of the advice-of-rights forms, in classic form, and the district court's questioning, which elicited corroboration of appellants' pre-trial silence, ¹ the record contains at least four other references to appellants' silence. Those other references during the government's case-in-chief ² undercut the government attorney's attempt at oral argument to escape responsibility for having elicited evidence of appellants' silence. The government's trial attorney asked the arresting Illinois state trooper, 'Did either of the (appellants) make any statement at that time?' The trooper, perfectly responsively, answered:

'(T)he Sheriff's office did have a consent form there for rights statements and Chief Deputy Hill read the statement to Mr. Cupit first with Mr. Earl out in the outer office and he asked him to sign it if he wanted to.

'Mr. Cupit made the statement that he did not want to talk to anyone unless he had a lawyer or something to that effect. . . .' Trial Transcript 113. (Emphasis supplied.)

In the same direct examination, the government trial attorney again asked, 'Did you ask (Cupit), uh, who (a certain wallet) belonged to?' Again, the trooper's response, hardly surprisingly, referred to Cupit's silence.

'(I) may have asked him if . . . the name (in the wallet would be the name) he would be using or if that was his name because he had stated that he did not want to answer any questions and I advised him that I just needed to fill out an information sheet with reference to my arrest. . . .' Trial Transcript 114. (Emphasis supplied.)

Again, the government attorney questioned the trooper.

'Q. Now, did you interview Mr. Earl?

'A. When Mr. Cupit had given me the information in reference to the report that I filled out---when this information was completed he was taken back into the outer office and Mr. Earl was brought in.

'Mr. Earl was again read the rights waiver that Chief Deputy Hill had in his office. A tape recorder was on the table in plain view of everyone in the small room and Mr. Earl did not say a word. . . .

'Q. So, you did or did not conduct an interview at that time?

'A. We did not at any time except the same thing I had done with Mr. Cupit. I asked him if he would give me the information to fill out my forms and he did make the statement then that he would not say anything as long as the tape recorder was on.' Trial Transcript 115--116. (Emphasis supplied.)

The trooper, somewhat unresponsively, on cross-examination again mentioned appellants' silence. '(T)he men did not want to talk, all I was interested in was filling out the information sheets and then having them detained.' Trial Transcript 118. (Emphasis supplied.)

The references to appellants' silence are clearly constitutional error. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1624--25 n. 37, 16 L.Ed.2d 694 (1966), explicitly recognized that

'it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.'

Accord, United States v. Ghiz, 491 F.2d 599 (4th Cir. 1974); United States v. Guzman, 446 F.2d 1137 (9th Cir. 1971), cert. denied, 404 U.S. 1022, 92 S.Ct. 697, 30 L.Ed.2d 672 (1972); United States v. Matos, 444 F.2d 1071 (7th Cir. 1971); United States v. Wick, 416 F.2d 61 (7th Cir.), cert. denied, 396 U.S. 961, 90 S.Ct. 436, 24 L.Ed.2d 425 (1969). See United States v. Williams, 523 F.2d 407 (2d Cir. 1975) ('assuming,' without 'deciding,' that admission of trial testimony that defendant refused to answer questions was error). Moreover, that appellants' trial attorneys failed to 'object or move to strike does not serve to waive this sort of error, nor does it excuse the failure of the judge to intervene and strike the offending testimony and instruct the jury to disregard it.' United States v. Ortiz, 507 F.2d 1224, 1226 (6th Cir. 1974). See Minor v. Black, 527 F.2d 1 (6th Cir. 1975).

But, as this court recently recognized in Minor, supra, 'constitutional error in using pre-trial silence . . . may on occasion be harmless error.' 527 F.2d at 5. In contradistinction to Minor, the government never argued the appellants' silence to the jury. Where the error has been found to be prejudicial, and hence reversible, there usually has been such argument, often being extensive, and strongly-worded. See, e.g., Minor, supra; Moye v. Paderick, 526 F.2d 589 (4th Cir. 1975); Fowle v. United States, 410 F.2d 48, 49 n. 1 (9th Cir. 1969). But see United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), aff'g 162 U.S.App.D.C. 305, 498 F.2d 1038 (1974).

Where evidence of guilt has been 'overwhelming,' Ortiz, supra, 507 F.2d at 1226, courts have found that erroneous references to pre-trial silence are harmless beyond a reasonable doubt. Williams, supra; Leake v. Cox, 432 F.2d 982, 984 (4th Cir. 1970); Wick, supra. Even with minimal closing argument reference to pre-trial silence, the error has been found to be constitutionally harmless, in light of 'overwhelming' evidence of guilt. Leake, supra, 432 F.2d at 983, 984; Wick, supra, 416 F.2d at 62.

The government here presented overwhelming evidence of appellants' guilt of interstate kidnapping. While some of the evidence is not inconsistent with appellants' theory...