547 F.2d 1240 (5th Cir. 1977), 75-3940, Chapman v. United States
|Citation:||547 F.2d 1240|
|Party Name:||Don Garriga CHAPMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.|
|Case Date:||March 03, 1977|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Allen C. D. Scott, II, Jacksonville, Fla. (court appointed), for petitioner-appellant.
Stewart J. Carrouth, Asst. U. S. Atty., Nickolas Geeker, U. S. Atty., Clifford L. Davis, Asst. U. S. Atty., Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before GOLDBERG, SIMPSON and GEE, Circuit Judges.
GOLDBERG, Circuit Judge:
This appeal is from an order denying to Don Garriga Chapman post-conviction relief pursuant to 28 U.S.C. § 2255. Chapman is currently serving a ten year sentence for unlawfully attempting to enter a federal banking institution with intent to take money therefrom, in violation of 18 U.S.C. § 2113(a). This court affirmed Chapman's conviction on direct appeal. United States v. Chapman, 435 F.2d 1245 (5th Cir. 1970), cert. denied, 402 U.S. 912, 91 S.Ct. 1392, 28 L.Ed.2d 654 (1971). For purposes of this collateral attack, Chapman argues that two constitutional errors fatally tainted his trial.
The first line of attack, which we rejected on direct appeal, is that the prosecution improperly elicited evidence of Chapman's post-arrest, post-Miranda-warning silence as part of its case in chief. The second line of attack is premised on the prosecution's cross-examining Chapman regarding two prior uncounselled felony convictions. Although we deflect without difficulty the second attack by invoking the harmless error rule, 1 the first requires us to assess the impact of recent Supreme Court and Fifth Circuit cases handed down after Chapman's 1970 conviction had become final. Ultimately we find that this challenge as well fails to meet the threshold requirement of the harmless error rule, and consequently we affirm.
A police officer was directed to the Parkway National Bank. Upon his arrival, he
heard a scraping noise in the stairwell behind the bank. He then saw Chapman removing a crowbar from the door of the bank. Chapman crouched in the corner of the stairwell, concededly attempting to hide, but the officer arrested him.
The officer escorted the appellant from the stairwell. When they reached the top of the stairs, the officer read Chapman his Miranda rights. He searched Chapman, then led him to the officer's patrol car.
In the course of presenting its case at trial, the prosecution asked the arresting officer the following question:
"Did Mr. Chapman say anything else to you immediately after you arrested him as he was coming up out of the stairwell or during the time you were taking him to the car and after you put him in the car, did he say anything else to you?"
The defense objected. The prosecutor told the witness to answer yes or no. After the trial judge had excused the jury, government counsel explained: " . . . Now, the reason I asked him the question is I want to point out that he did not say anything, he did not give any explanation." The judge said he would allow the question. When the jury returned, the prosecutor repeated his question. The arresting officer answered, "no."
The defense subsequently called its only witness, the appellant. Chapman denied that he had been attempting to enter the bank. He claimed that two hitchhikers had borrowed his car, parked it near the bank, and, without his prior knowledge, used his crowbar in an attempt to enter the bank. When he learned that his companions had left the crowbar wedged in the bank's rear door, Chapman averred, he immediately sought to retrieve the implement, knowing that it bore his fingerprints. Chapman claimed he was apprehended while trying to recover the crowbar.
The jury chose to disbelieve Chapman's account and found him guilty as charged. Chapman does not challenge the sufficiency of this evidence to support his conviction.
II. The Use of Post-Arrest, Post-Miranda-Warning Silence
On direct appeal, this court held, inter alia, that the testimony regarding Chapman's silence was not prejudicial and did not infringe Chapman's fifth amendment rights. The court reasoned that the prosecutor asked a single question requiring merely a yes or no answer and that he received the answer without comment. United States v. Chapman, supra, 435 F.2d at 1247. 2
A defendant is entitled to relitigate on a motion to vacate judgment an issue decided on direct appeal where there has been an intervening change in the law. See Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109, 116 (1974); Kaufman v. United States, 394 U.S. 217, 230, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). 3 We shall consider whether an intervening change in the law that makes clear that the tactic employed against Chapman was a violation of due process enables his collateral attack to succeed where his direct appeal failed.
Had we Chapman's direct appeal before us today, there can be no doubt that we
should find the reference to the appellant's post-arrest silence to constitute a violation of due process. Quite apart from whether any error was harmless the conclusion that error was committed follows a fortiori from our decision in United States v. Impson, 5th Cir., 531 F.2d 274, rehearing denied, 535 F.2d 286 (5th Cir. 1976), and the Supreme Court's decision in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).
The Impson court relied on the balancing approach taken in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), 4 to conclude that admitting evidence of the defendant's post-arrest silence as part of the prosecution's case in chief was error because its great potential for prejudice outweighed the slight probative value of defendant's silence. 5 The court did not reach the question whether admission of such evidence as part of the prosecution's case in chief was a constitutional violation under Miranda.
In Doyle, the Supreme Court faced the question whether, although evidence of a criminal defendant's post-arrest, post-Miranda-warning silence could not be admitted for substantive purposes, it could be used for impeachment purposes. The Court held that the due process clause forbids the prosecution to use such evidence for purposes of impeaching an exculpatory story offered at trial. See also United States v. Luna, 539 F.2d 417 (5th Cir. 1976); United States v. Harp, 536 F.2d 601 (5th Cir. 1976). Hale and Doyle condemn what this court had allowed in a series of decisions subsequent to Chapman's trial but prior to Hale. See e. g., United States v. Quintana-Gomez, 488 F.2d 1246 (5th Cir. 1974); United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971). 6
Doyle did not spring full-blown from the Court's collective brow, but rather traces its impressive lineage to fundamental principles of our jurisprudence. In Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966), the Supreme Court announced in dictum 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." Although that admonition refers primarily to the prosecution's affirmative use of the defendant's prior silence rather than its use for impeachment purposes, even before Doyle some courts, though not the Fifth Circuit, had construed Miranda to prohibit its use for the latter purpose as well. See United States v. Anderson, 162 U.S.App.D.C. 305, 498 F.2d 1038 (1974); Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973). United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969). 7 But see Sharp v. United States, 410 F.2d 969, 972 (5th Cir. 1969) (Brown, C. J., dissenting).
Regardless of whether such impeachment evidence was prohibited under the law applicable at the time of Chapman's trial, however, the trial court arguably should not have allowed this substantive use of the defendant's silence. Throughout the briefs and oral argument of this case, the parties have assumed that only Hale and Doyle could show a violation. But unlike those cases, in the case at bar the prosecution arguably did not use Chapman's silence to impeach but to support an inference of guilt. When the prosecutor elicited testimony regarding Chapman's post-arrest silence, Chapman had not yet offered his exculpatory story. Impeachment evidence is ordinarily elicited on cross-examination or rebuttal. The timing of the prosecutor's questions make clear that this was substantive, not impeachment testimony. Indeed, when the prosecutor defended the propriety of a question he knew would result in evidence of Chapman's silence, he said nothing about impeachment; he said only that he wanted to show that Chapman did not give an explanation. This suggests that the prosecutor intended to bring before the jury the fact of Chapman's silence as a tacit admission a tactic this court properly condemned long before Hale. See, e. g., Walker v. United States, 404 F.2d 900 (5th Cir. 1968). The failure to give a limiting instruction should prevent the subsequently acquired impeachment value of defendant's silence from saving the impropriety. 8
The prohibition against the use of a defendant's silence as a means of implying his guilt obtained at the time of Chapman's trial. We have recognized that "Miranda establishes that the prosecution may not use as part of its case in chief...
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