Durant v. Com.

• Decision Date: 20 December 1988
• Docket Number: No. 0047-87-2,0047-87-2
• Citation: 7 Va.App. 454,375 S.E.2d 396
• Court: Virginia Court of Appeals
• Parties: Sonya L. DURANT v. COMMONWEALTH of Virginia. Record

Page 396

375 S.E.2d 396

7 Va.App. 454

Sonya L. DURANT v. COMMONWEALTH of Virginia.

Record No. 0047-87-2.

Court of Appeals of Virginia.

Dec. 20, 1988.

Charles C. Cosby, Jr. (Boone, Carpenter, Beale, Cosby & Hyder, Richmond, on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and HODGES, JJ.

HODGES, Judge.

Sonya Durant was convicted by a jury of aggravated sexual battery in violation of Code § 18.2-67.3. She was sentenced in accordance with the jury's verdict to three years in the penitentiary. On appeal, Durant raises the following issues: (1) whether the trial court erred in denying her motion for a mistrial based on the Commonwealth's attorney's allegedly improper comments about her request to speak to an attorney before answering questions; (2) whether the trial court erred in excluding testimony from several witnesses about past violent acts of her husband; and (3) whether the trial court erred in refusing to allow her seven year old son to testify regarding an observed violent incident between her and her husband. We reverse the defendant's conviction on the ground that the Commonwealth's attorney's references to the defendant's post-arrest, post-Miranda silence violated her due process rights. We also reverse on the ground that the court erred in refusing to allow Durant's seven year old son to testify. Because the matter is remanded and the evidence presented at retrial may differ significantly from that introduced at the first trial, we decline to address whether the court erred in excluding the testimony of several witnesses regarding past violent acts of Durant's husband.

Durant's conviction arose out of two incidents which occurred in May and June of 1986. On the evening of May 29, 1986, Durant and her husband, Leroy, were celebrating their marriage with Durant's fifteen year old daughter and seven year old son. Later, after her daughter showered, Durant told her not to put on her gown and to remove her underclothes. Leroy, who was dressed in his pajama bottoms, called the girl into the bedroom. He told Durant, who was also naked, to lie on top of her daughter. Durant told her daughter that she did not think her daughter cared about her, but that she was going to prove how much she cared about her daughter. Leroy told Durant to touch her daughter's breasts and vagina with her hands and mouth and she complied. He then instructed the daughter to do the same to her mother. He also touched the victim's vagina. When her daughter cried, Durant told her that there was nothing to be ashamed about. After the incident, the daughter put on her clothes and slept on the sofa. Durant and her husband both told the victim not to tell anyone about the incident.

The second incident occurred six days later. Again, at her husband's direction, Durant performed sexual acts with her daughter. The victim testified that later that evening Leroy had sex with her although her mother begged him not to. At trial, Durant denied that her husband had sex with her daughter.

A few days after the second incident, the daughter told her mother that she did not want to stay in the house with Leroy. Durant gave her bus fare and she left home. Durant also arranged for her son to stay with his natural father. She left her husband several weeks later.

The victim told her grandmother about the incidents in July. Her grandmother contacted the Child Protective Services, which led to the defendant's arrest. Upon her arrest, Durant was advised of her Miranda rights. She elected to remain silent until speaking with an attorney.

I. Post-arrest, Post-Miranda Silence

Durant argues that the trial court erred in refusing to grant the motion for a mistrial after the Commonwealth improperly commented on her post-arrest, post-Miranda silence. At trial, Durant, who admitted performing the acts, relied upon the defense of duress. She testified that on the evening of the first incident her husband told her that he wanted her to have sex with another woman. Although she cried and told him that she did not want to, he said he would not be denied and he threatened to kill her if she did not comply. Durant claimed that her husband kept a gun and knife in the bedroom and that she performed the acts because she was afraid for her daughter and herself. She testified that her marriage was violent and that her husband had abused her in the past. Durant explained that she did not leave her husband until several weeks after her children left because she was afraid of what he might do.

When questioned on cross-examination about why she never told anyone about the incidents, Durant responded that she did not have a telephone at home and that her husband was always with her. When the Commonwealth's attorney asked her why she did not tell the whole story to the police when she finally saw them, she responded, "Because I told them that I wanted to talk to my lawyer first and that is what I did." The Commonwealth's attorney then commented, "[S]o instead of coming forth and spewing forth the whole story, you made the statement that you wanted to talk to somebody else?" The defense objected and moved for a mistrial. The court denied the motion. During closing argument, the Commonwealth's attorney again referred to Durant's decision to speak with an attorney rather than telling the police the whole story.

The United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976), that the use for impeachment purposes of a defendant's silence after his arrest and the issuance of the Miranda warnings violated the Due Process Clause of the Fourteenth Amendment of the United State Constitution. The holding in Doyle was based on the rationale that it is a deprivation of due process for the state to guarantee certain rights and then penalize the defendant at trial for legitimately exercising his rights. The Commonwealth, however, argues that the Commonwealth's attorney's comments in this case were properly used to negate the defense of duress, rather than for impeachment purposes, and, therefore, there was no Doyle violation. The Commonwealth assets that "[i]f the defendant failed to take advantage of a reasonable opportunity to avoid doing the acts without being harmed, [s]he may not rely on duress as a defense." Pancoast v. Commonwealth, 2 Va.App. 28, 33, 340 S.E.2d 833, 836 (1986) (citations omitted). The Commonwealth argues that the prosecutor's comments were designed to show that the defendant did not satisfy the "escape or avoid" prong of the defense; thus, the comments were not intended to impeach the defendant's testimony by capitalizing upon her post-arrest, post-Miranda warning silence. Based on the holdings in Doyle and Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) (use of defendant's silence to rebut affirmative defense of insanity held improper), we reject the Commonwealth's argument and reverse, holding that the Commonwealth's comments were improper and a violation of Durant's due process rights.

In Doyle, the defendants, who were arrested for the sale of marijuana, claimed for the first time at trial that they were framed. Over objection, the prosecution cross-examined them as to why they had not told the arresting officer about the frame-up. The Supreme Court reversed, holding that the use for impeachment purposes of a defendant's silence after his arrest and receipt of the Miranda warnings was a violation of the Fourteenth Amendment's Due Process Clause. The Court held:

[W]hile 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.

Doyle, 426 U.S. at 618, 96 S.Ct. at 2245. However, "[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings," the Supreme Court held, "we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." Fletcher v. Weir, 455 U.S. 603, 607, 102 S.Ct. 1309, 1312, 71 L.Ed.2d 490 (1982). Furthermore, when a defendant elects to waive his right to remain silent by making exculpatory statements to the police, cross-examination by the prosecutor about why the defendant had not related his alibi prior to trial is not an infringement upon the defendant's fifth or fourteenth amendment rights. Simmons v. Zahradnick, 465 F.Supp. 115 (E.D.Va.1979) (Doyle holding was inapplicable to facts of case); Squire v. Commonwealth, 222 Va. 633, 283 S.E.2d 201 (1981). In Simmons, the court said:

Because petitioner, in making selected exculpatory statements to the police, waived his right to remain silent, his failure to relate his alibi until trial was in this court's view not an exercise by petitioner of his Fifth Amendment right, but instead was probative on the issue of whether the contended alibi was a recent fabrication.

Simmons, 465 F.Supp. at 118. Likewise, in Squire, the supreme court held:

[The defendant] could have exercised his constitutional right to remain silent in accordance with the Miranda warning that he acknowledged having received. If he had done so, he could not properly have been cross-examined at trial about his failure to mention his alibi to the investigating officer. Once he broke his silence, however, to answer questions under pretrial police interrogation and to request to see his accuser, he did not have the right thereafter to remain silent selectively and then prevent the prosecution from cross-examining him about his failure to reveal the exculpatory facts to which he testified.

Squire, 222 Va. at 638, 283 S.E.2d at...