Bertarelli v. State

• Decision Date: 11 April 1991
• Citation: Bertarelli v. State, 585 So.2d 212 (Ala. Crim. App. 1991)
• Parties: Frank Federico BERTARELLI v. STATE. CR 89-1323.
• Court: Alabama Court of Criminal Appeals

Page 212

585 So.2d 212

Frank Federico BERTARELLI v. STATE.

CR 89-1323.

Court of Criminal Appeals of Alabama.

April 11, 1991.

Rehearing Denied May 17, 1991.

Certiorari Denied July 26, 1991

Alabama Supreme Court 1901383.

Dan W. Taliaferro, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Frank Federico Bertarelli, was convicted of theft of property in the second degree, a violation of § 13A-8-4, Code of Alabama 1975. He was also convicted of violating the Ethics Act.

The State's evidence tended to show that Larry Armstead, a captain in the Montgomery Police Department, suspecting that certain officers were stealing money, planted drugs and $2,300 in cash in an apartment where alleged drug sales were said to take place. A police trainee was also used as a decoy outside the apartment. He had $540 on his person.

The appellant, an officer in the Montgomery Police Department at the time of the offense, and five other officers, Officers Wooten, Mosko, Barnett, Jones, and Lay, composed a group in the department known as Retake Our Turf (ROT). The unit was informed of a possible drug arrest at the place where the drugs and money were planted. The first officers on the scene, Officers Jones and Lay, searched the man acting as a decoy and then the officers went into the apartment. They did not find the drugs and money, which had been placed in a heater vent. The appellant, Mosko, Wooten, and Barnett then arrived. Appellant Bertarelli, along with Officers Mosko and Wooten, then went into the apartment and commenced a search of the premises.

The appellant was questioned concerning the incident, when no money was turned in with the drugs. The appellant made a confession and stated that he and Officer Wooten arrived after Jones and Lay and started searching the apartment. The appellant stated that he found the money and drugs in a heater vent. He said Officer Wooten then took the bag with the money, took the money out, and gave the bag back to the appellant. The appellant gave an envelope containing $560 to the police when questioned about the incident. The appellant said that he had met Wooten at the car and Wooten divided up the money with him.

At trial, the appellant testified that Wooten gave him an envelope containing $540 in cash and told him to impound it. He thought this was all the money found at the scene. He said he was going to impound the money as "found property," when he was taken to be questioned.

The police trainee, acting as a decoy, who was outside the apartment when it was searched, testified at trial that he could hear the officers as they searched the residence. He heard one say, "Jackpot." Officer Caffey testified that he told the officers who composed the ROT unit, about someone selling drugs. He then directed the unit to the location where the drugs and money had been planted. Officer Caffey monitored the incident as it happened, and he testified that there was no mention of any money being found, just the drugs being recovered. The money was never all recovered. However, several hundred dollars were found in the sewers under the police station.

I

The appellant contends that the following, which occurred during the cross-examination of Mosko, was error:

"Q [Prosecutor]: Sir, do you remember being given the opportunity to testify before the Montgomery County Grand Jury on April 11th, 1990, at approximately 1:35 p.m. concerning this investigation?

"A [Mosko]: Yes, ma'am.

"Q You did appear, did you not?

"A Yes, ma'am, I did.

"Q And you were advised of your so-called constitutional Miranda rights, were you not?

"A Yes, ma'am, I was.

"Q The same rights that you were advised of when you were questioned by Captain Gantt?

"A Yes, ma'am, I was.

"Q And that was done orally just as it was by Captain Gantt?

"A BY MR. FEAGA: Yes, ma'am.

"Q And those same rights were given to you, including the right that anything you say can be used against you in a court of law?

"A Yes, ma'am.

"Q And after being given those rights, isn't it true, sir, that knowing that and being familiar with the right and understanding them, when you were asked are you willing to answer questions that might be posed to you by any authorized person in this proceeding today, you said no, that you were not willing to answer questions?

"A That's true; yes, ma'am.

"MR. TALIAFERRO: I object to that. I move for a mistrial at this point, your honor.

"THE COURT: Overruled. The mistrial is denied."

We agree with the appellant. We believe the extensive questioning of Mosko concerning whether he invoked his Fifth Amendment right in front of the grand jury resulted in reversible error.

It is impermissible for the prosecution to refer to the defendant's invocation of his Fifth Amendment right to remain silent. Craig v. State, 375 So.2d 1252 (Ala.Cr.App.), cert. denied, 375 So.2d 1257 (Ala.1979); See also, Brownlee v. State, 545 So.2d 151 (Ala.Cr.App.1988), aff'd, 545 So.2d 166 (Ala.1989), cert. denied, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989). It then follows that a prosecutor may not impeach a defendant by questioning him on his invocation of his Fifth Amendment right to remain silent. See United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975); Ex parte Wiley, 516 So.2d 816 (Ala.1987); Dickey v. State, 390 So.2d 1177 (Ala.Cr.App.), cert. denied, 390 So.2d 1178 (Ala.1980); Houston v. State, 354 So.2d 825 (Ala.Cr.App.1977), cert. denied, 354 So.2d 829 (Ala.1978).

The United States Supreme Court in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), reversed a conviction when the defendant was impeached by questioning him concerning the invocation of his Fifth Amendment right to remain silent when he was brought before the Grand Jury. The United States Supreme Court in Grunewald stated the following concerning invoking the Fifth Amendment right:

"Recent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men. [citation omitted.] 'Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.' "

353 U.S. at 421, 77 S.Ct. at 982. The Court also made several observations concerning the nature of testifying before the grand jury. They stated:

"Innocent men are more likely to plead the privilege in secret proceedings, where they testify without advice of counsel and without opportunity for cross-examination, than in open court proceedings, where cross-examination and judicially supervised procedure provide safeguards for the establishing of the whole, as against the possibility of merely partial, truth."

353 U.S. at 422, 77 S.Ct. at 983. Witnesses called before the grand jury are compelled witnesses who are not represented by counsel. See Grunewald.

The reasoning of Grunewald has been applied to witnesses other than the defendant. See Nezowy v. United States, 723 F.2d 1120 (3rd Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984); United States v. Williams, 464 F.2d 927 (8th Cir.1972). Some courts have applied the harmless error doctrine in this context. See Nezowy, supra (Pennsylvania). (At least one other court has said that the harmless error doctrine could not be applied. See Williams, supra (Missouri).). The Court of Appeals for the Eastern District of Pennsylvania stated in Nezowy:

"Our holding, i.e. that questioning by the government concerning a witness' fifth amendment claim of privilege before a grand jury will constitute trial error, obviously includes a defendant party as well as a non-party witness. We emphasize, however, that the issue presented in this case involves only the corrective action required when a non-party, ... is questioned. Thus ... we have no occasion to address the adoption of any per se rule providing for automatic reversal in the event a defendant himself is questioned by the Government as to his fifth amendment privilege.

"At least one other court of appeals subsequent to Grunewald has taken the position that, subject to a harmless error determination, questioning about use of the fifth amendment privilege is impermissible in all cases, whether the witness be the defendant or a disinterested third party."

723 F.2d at 1125, footnote 6, citing United States v. Natale, 526 F.2d 1160 (2d Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 193 (1976).

We adopt the harmless error rationale used by the courts in Nezowy and Natale. "Error resulting from fifth amendment cross examination (is) harmless when (1) the witness' testimony was remote from the crime charged, and (2) there was no likelihood that the jury would have become confused and would link the defendant ... to the witness' ... assertion of the privilege." Nezowy, 723 F.2d at 1125. However, we can not say that the questioning of Mosko in this case resulted in harmless error.

In the present case, Mosko's testimony would not meet either prong of the analysis. Mosko was one of the officers involved in the offense. His testimony was not remote and we believe that any reference to his fifth amendment right was a link to the defendant. "The danger that the jury made impermissible use of the testimony by implicitly equating the plea of the Fifth Amendment with guilt is, in light of contemporary history, far from negligible." Grunewald, 353 U.S. at 424, 77 S.Ct. at 984. The extensive cross-examination of Mosko concerning his fifth amendment right which he invoked in front of the grand jury, resulted in ineradicable harm to the appellant.

In the interest of judicial economy, we will address the appellant's remaining issues, which may arise in a new trial.

II

Appellant Bertarelli further argues that the statement he...