Charles v. Anderson
| Decision Date | 22 January 1980 |
| Docket Number | No. 79-1158,79-1158 |
| Citation | 610 F.2d 417 |
| Parties | Glenn CHARLES, Petitioner-Appellant, v. Charles ANDERSON, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
F. Martin Tieber, Deputy State Appellate Defender, Lansing, Mich., for petitioner-appellant.
Frank J. Kelley, Atty. Gen. of Michigan, Robert A. Derengoski, Sol. Gen., Thomas L. Casey, Stephen F. Schuesler, Asst. Attys. Gen., Lansing, Mich., for respondent appellee.
Before, EDWARDS, Chief Judge, MERRITT, Circuit Judge, and PHILLIPS, Senior Circuit Judge.
The appeal in this habeas corpus case presents the question whether a murder defendant who, shortly after his arrest and after receiving Miranda warnings, offered an exculpatory story that is inconsistent with the story he told at trial, may be cross-examined about his post-arrest failure to assert his trial version of the story. On the authority of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), we hold that he may not.
Petitioner-appellant Glenn Charles was found guilty on October 9, 1972, of the first degree murder of Theodore Ziefle by strangling him with an electrical cord. The Circuit Court of Washtenaw County, Michigan, sentenced Charles to mandatory life imprisonment following a jury verdict of guilty. There were no witnesses to the crime. The only evidence linking Charles to the murder was his possession of Ziefle's car and certain personal possessions; the fact that Charles owned a black T-shirt similar to that worn by a man in whose company Ziefle was last seen alive; and Charles' alleged statements to witnesses in Grand Rapids, Michigan, that he had murdered a man in Ann Arbor, that it would take about three minutes to strangle a person, and that his hands were deadly weapons.
The State's theory of the case was that Charles, an escaped trusty of the State prison farm in Jackson, Michigan, was hitchhiking when Ziefle gave him a ride, that Ziefle brought Charles to his home for the purpose of engaging in homosexual activity and that Charles murdered Ziefle to obtain his car and valuables.
Charles testified that he found the car parked behind Kelly's Tire Company in Ann Arbor with the keys in the ignition and stole it to evade prison authorities. He said that he found the valuables, some silver coins, and an old camera, in the trunk of the car when he was looking for a rag with which to wipe off his fingerprints. He admitted driving to Grand Rapids and telling witnesses there that the car was stolen but denied telling them he had killed its owner.
On his cross-examination, the following colloquy occurred;
Q. Now, this Kelly's Tire Company, that's right next to the bus station, isn't it?
A. That's correct.
Q. And, the bus station and Kelly's Tire are right next to the Washtenaw County Jail are they not?
A. They are.
Q. And, when you're standing in the Washtenaw County Jail looking out the window you can look right out and see the bus station and Kelly's Tire, can you not?
A. That's correct.
Q. So, you've had plenty of opportunity from well, first you spent some time in the Washtenaw County Jail, haven't you?
A. Quite a bit.
Q. And, you have had plenty of opportunity to look out that window and see the bus station and Kelly's tire?
A. That's right.
Q. And, you've seen cars being parked there, isn't that right?
A. That's correct.
Q. Is this where you got the idea to come up with the story that you took a car from that location?
A. No, the reason I came up with that is because it's the truth.
Q. It's the truth?
A. That's right.
Q. Don't you think it's rather odd that if it were the truth that you didn't come forward and tell anybody at the time you were arrested, where you got that car?
A. No, I don't.
Q. You don't think that's odd?
A. I wasn't charged with auto theft, I was charged with murder.
Q. Didn't you think at the time you were arrested that possibly the car would have something to do with the charge of murder?
A. When I tried to talk to my attorney they wouldn't let me see him and after that he just said to keep quiet.
Q. This is a rather recent fabrication of yours isn't it not? (sic)
A. No, it isn't.
Q. Well, you told Detective LeVanseler back when you were first arrested, you stole the car back on Washtenaw and Hill Street?
A. Never spoke with Detective LeVanseler.
Q. Never did?
A. Right, except when Detective Hall and Price were there and then it was on tape.
Charles appealed his conviction to the Michigan Court of Appeals. He argued that the prosecutor committed reversible constitutional error by using Charles' post-arrest silence to impeach the exculpatory story he told at trial. The court accepted the State's argument that the prosecutor's questions merely pointed out Charles' prior inconsistent statement and did not use his post-arrest silence for impeachment purposes. Accordingly, it affirmed Charles' conviction. People v. Charles, 58 Mich.App. 371, 227 N.W.2d 348 (1975). The Michigan Supreme Court denied leave to appeal.
Charles then petitioned the district court for a writ of habeas corpus, raising the same issues the Michigan courts had rejected. The district court dismissed the petition on December 28, 1978, and this appeal followed.
Charles argues that the prosecutor's cross-examination amounted to an inquiry into his post-arrest silence. Although Charles' trial counsel apparently did not object to the prosecutors' cross-examination, the State does not argue that the error was not preserved for appeal. Both the Michigan Court of Appeals and the district court seem to have assumed that the issue could be raised for the first time on appeal. This was clearly correct in the present situation. Michigan appellate courts have held repeatedly that the failure to object at trial does not foreclose them from considering alleged constitutional violations. See People v. Cotton, 38 Mich.App. 763, 197 N.W.2d 90 (1972); People v. Schumacher, 29 Mich.App. 594, 185 N.W.2d 633 (1971); People v. Limon, 4 Mich.App. 440, 145 N.W.2d 287 (1966). Furthermore, this court has found constitutional error in impeachment by post-arrest silence even though the defendant did not object at trial. See Rachel v. Bordenkircher, 590 F.2d 200, 203 (6th Cir. 1978); Minor v. Black, 527 F.2d 1, 4-5 (6th Cir. 1975), Cert. denied, 427 U.S. 904, 96 S.Ct. 3189, 49 L.Ed.2d 1198 (1976). Thus, the constitutional issue is properly before us.
This case, Charles says, is controlled by Doyle v. Ohio, 426 U.S. 610, 619 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), where the Supreme Court held "that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment."
In Doyle, two criminal defendants testified at their trial to an exculpatory story they had not previously offered. Over their counsel's objection, the prosecutor cross-examined them about why, if the exculpatory story were true, they had not offered it to the arresting officers after receiving Miranda warnings. The Supreme Court held that this use of their post-arrest silence violated due process:
Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State's position. The warnings mandated by (the Miranda decision), as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, (94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182) (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, supra, (422 U.S. 171) at 177 (95 S.Ct. 2133, 45 L.Ed.2d 99). Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, 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.
(Footnotes omitted.) 426 U.S. at 617-18, 96 S.Ct. at 2244, 2245.
The Attorney General of Michigan argues that Doyle does not control this case because the prosecutor's questions "merely went to show the inconsistency between Petitioner's testimony that he stole the car from the tire store and his earlier statement to the detective that he took the car from the vicinity of Hill and Washtenaw Streets." Unlike the Doyle petitioners, the State argues, Charles did not remain silent after receiving the Miranda warnings, but rather offered an exculpatory explanation which differed from that he gave at trial. The prosecutor's questions, the State says, were merely a legitimate attempt to explore this inconsistency. 1
The question we must address is whether a defendant who has made a post-arrest statement inconsistent with his exculpatory trial testimony may be cross-examined not only about his prior inconsistent statement but also about his post-arrest failure to tell the arresting officers the exculpatory story he told at his trial. For the reasons hereinafter set forth, we hold that he may not, and, accordingly, reverse.
We begin with the proposition that Doyle does not prohibit every impeachment use of a defendant's post-arrest silence, but only those which are fundamentally unfair. For example, the Doyle court recognized:
(T)he fact of post-arrest silence could be used by the...
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