Douglas v. Commonwealth, No. 2006-SC-000882-MR (Ky. 12/20/2007), 2006-SC-000882-MR.
| Decision Date | 20 December 2007 |
| Docket Number | No. 2006-SC-000882-MR.,2006-SC-000882-MR. |
| Parties | Johnnie DOUGLAS, Appellant v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
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v.
COMMONWEALTH of Kentucky, Appellee.
On Appeal from Jefferson Circuit Court, Honorable Martin F. McDonald, Judge, Nos. 05-CR-002357 and 05-CR-003400.
Daniel T. Goyette, Louisville Metro Public Defender, Cicely J. Lambert, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, Kentucky, Counsel for Appellant.
Gregory D. Stumbo, Attorney General, Bryan D. Morrow, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky, Counsel for Appellee.
Johnnie Douglas appeals as a matter of right from an October 24, 2006 Judgment of the Jefferson Circuit Court convicting him of first-degree robbery (KRS 515.020) and two counts of kidnapping (KRS 509.040). Douglas received a twenty year prison sentence for each of those crimes, and, pursuant to the jury's further finding that he was a first-degree persistent felony offender (PFO), an enhanced thirty-five year term on each count, all to be served concurrently. The Commonwealth maintained and the jury found that on June 25, 2005, Douglas and an accomplice entered Cash Tyme, a check cashing business on Preston Highway in Louisville. Douglas brandished a handgun and demanded the company's money from the two cashiers on duty, and then the accomplice restrained the women in a back room before he and Douglas fled. Douglas contends that the trial court erred by (1) permitting the Commonwealth to
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question him regarding his post-arrest silence; (2) failing to dismiss a prospective juror for cause or to award Douglas an additional peremptory strike to remove the juror; (3) denying Douglas's motion for a directed verdict with respect to the two kidnapping charges; (4) denying his motion to require compliance with Administrative Procedures regulating jury summonses; (5) denying his motion for a directed verdict with respect to the first-degree PFO charge; (6) permitting the Commonwealth to define "reasonable doubt"; and (7) permitting the Commonwealth to question him during the guilt phase of the trial regarding his prior felony convictions. We agree with Douglas that he was entitled to a directed verdict dismissing the two kidnapping charges and so must reverse the trial court's judgment with respect to those crimes. We affirm, however, Douglas's conviction of and enhanced sentence for the robbery.
At Douglas's trial, the two Cash Tyme employees, Stephanie Hughes and La Nika Strawter, testified that not long after they had opened the store on the morning of June 25, 2005, two men entered, an older African American and his younger, lighter complected companion. The older man said he wished to open an account, but when Strawter asked him for identification he pulled out a silverish handgun and demanded the business's cash. As he did so, the younger man leapt across the service counter and forced Hughes into a back room where he used a plastic tie to bind her to a fence. When Strawter had given the older man about $2,700 from her cash drawer and a nearby pouch, the younger man led her, too, to the back room and restrained her in a similar manner. The two men then left the store.
Latoya Clemons testified that as she approached the store's entrance that day
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she observed a man climb over the service counter into the employee's work area. Fearing that something was amiss, she returned to her car and called 911. She reported a possible robbery involving two men, one African-American and one Caucasian. Moments later, while she was still on the phone with the 911 operator, she observed the two men exit the store and walk around the side of the building toward a parking area. She described the younger, lighter complected man as wearing blue jeans and a blue shirt. Immediately thereafter, she saw an older model station wagon emerge from the side of the building, and, still on the phone, she followed it and reported its route to the police. As she followed, she saw the younger man remove his shirt.
Uniformed officers followed Clemons's directions and promptly located and stopped the older model station wagon. As soon as the vehicle stopped, a young, light complected man fled from its passenger side, jumped over a guard rail, and escaped. The officers then approached the driver, Douglas, ordered him from the car, and handcuffed him. They informed the detective assigned to the case of the apprehension, and a short time later that detective brought Hughes and Strawter to the scene where they both, independently, identified Douglas as the older of the two men who had robbed them. A search of Douglas's person revealed a silver handgun and about $1,200 in cash. A search of the station wagon revealed a blue t-shirt, a patterned shirt which Hughes and Strawter stated Douglas wore during the robbery, and lottery tickets, among other items.
Douglas testified in his defense and claimed that he had been mistakenly identified. He admitted that he had been in the parking lot near Cash Tyme on the
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morning of June 25, 2005, but claimed that he had pulled in there to add a quart of oil to his old car. Another car had been there when he pulled in, with its engine running. Just as he had finished his chore, two men, whom he knew but refused to identify, came around the side of the building, apparently bickering. The younger man asked Douglas for a ride to the part of town where they both lived while the older man got into the car that had been left running. Douglas claimed he knew nothing of the robbery until he was pulled over by the police and the young man fled. Douglas testified that silver-colored handguns are common and that he kept his because he carried on his business—selling compact disks—in a rough part of town where he needed protection. He claimed that the cash in his possession was in part proceeds from his sales business but was primarily lottery winnings.
Douglas's Post-Miranda Silence Was Improperly Used for Impeachment But the Error was Harmless.
Douglas contends that his trial was rendered unfair when the Commonwealth cross-examined him about his failure to tell the police his version of events at the time of his apprehension or at any time prior to his testimony at trial. This cross-examination question, Douglas maintains, violated his right under the Fifth and Fourteenth Amendments to the United States Constitution to remain silent and not to incriminate himself. Douglas's counsel moved for a mistrial on this ground, but the trial court denied his motion. We agree with Douglas regarding the impropriety of the question but in light of the overwhelming evidence of Douglas's guilt, we are persuaded that the violation does not entitle Douglas to relief.
As Douglas correctly observes, in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49
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L. Ed. 2d 91 (1976), the United States Supreme Court held that it was a violation of the Due Process Clause of the Fourteenth Amendment for the State to use a defendant's post-arrest and post-Miranda1 silence to impeach his trial testimony. The Court explained that because Miranda warnings implicitly assure their recipient that his silence will not be used against him, it would be fundamentally unfair to allow a defendant's post-Miranda silence to be used for impeachment. In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L. Ed. 2d 490 (1982), however, the Court held that the federal constitutional proscription applies only to post-Miranda-warning silences and left it to the states to fashion their own rules with respect to whether pre-arrest or post-arrest but pre-Miranda silences could be used for impeachment. A few states have since held that their state constitutions, see e.g. Sanchez v. State, 707 S.W.2d 575 (Tex. 1986), or state evidentiary rules, see People v. Clark, 781 N.E.2d 1126 (Ill.App. 2002), proscribe impeachment even by use of pre-Mirandized silence. Although Douglas relied exclusively on his federal rights at trial, he now contends that Kentucky law, too, provides broader protection for pre-Miranda silence than does the federal Constitution. Because the state law question was not properly raised and has not been adequately briefed, we decline to address it.
As to Douglas's federal rights, the question before us is whether Doyle or Fletcher controls given the facts of this case. The Commonwealth contends that because Douglas was not Mirandized immediately upon apprehension but only after he was formally arrested following Hughes's and Strawter's identifications, Fletcher permitted it to impeach his trial testimony on the basis of his silence during the brief
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pre-Miranda detention. Had the Commonwealth's questioning been limited to that period, we would agree. However, the Commonwealth's Attorney asked Douglas not only whether he had "immediately' told the detaining officers of the allegedly exculpatory circumstances, but she also asked him whether he had ever, from the day of his arrest until his testimony at trial, told her or any of the investigating officers his account of the events leading up to his arrest. This question clearly tended to impeach Douglas on the basis of his post- as well as his pre-Miranda silence, and thus constituted a Doyle violation.
We agree with Douglas, therefore, that a violation occurred, but we do not agree that the violation entitled him to a mistrial, the only relief he sought. Doyle violations are subject to harmless error analysis. Green v. Commonwealth, 815 S.W.2d 398 (Ky. 1991); Niemeyer v. Commonwealth, 533 S.W.2d 218 (Ky. 1976). Pursuant to that analysis, a constitutional violation may be deemed harmless only if there is no substantial possibility that absent the violation the result would have been any different; the error must appear harmless beyond a reasonable doubt. Green v. Commonwealth, supra, (citing Abernathy v....
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