Greenfield v. Wainwright, 83-3111

• Decision Date: 06 September 1984
• Docket Number: No. 83-3111,83-3111
• Citation: 741 F.2d 329
• Parties: David Wayne GREENFIELD, etc., Petitioner-Appellant, v. Louie L. WAINWRIGHT, etc., et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 329

741 F.2d 329

David Wayne GREENFIELD, etc., Petitioner-Appellant, v. Louie L. WAINWRIGHT, etc., et al., Respondents-Appellees.

No. 83-3111.

United States Court of Appeals, Eleventh Circuit.

Sept. 6, 1984.

James D. Whittemore, Tampa, Fla., for petitioner-appellant.

Ann G. Paschall, Asst. Atty. Gen., Tampa, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

David Wayne Greenfield was convicted after a jury trial in Florida state court of sexual battery committed with force likely to cause serious personal injury. He was sentenced to life imprisonment. In this habeas corpus action, he raises one issue, whether the prosecutor's argument to the jury that Greenfield's post-arrest silence showed him to be sane violated his fifth and fourteenth amendments right to a fair trial. The district court denied relief; we reverse.

I.

On June 21, 1975, petitioner was walking on a path through the woods to Lido Beach, near Sarasota, Florida. He passed a young woman coming from the beach, who smiled and said something to him about the weather. After he passed her, he turned and choked her from behind, dragged her into the woods and forced her to engage in oral sex. Afterwards he made several inconsistent statements, among them: "I don't know why I did this. I know why I did this." He smoked a cigarette that belonged to the woman and then found her car keys for her.

After Greenfield released her, the woman drove directly to the police station and made a report, describing petitioner's attire and saying that his legs were badly sunburned. An officer returned to the beach two hours after the assault and found petitioner walking on the beach. He told petitioner he was investigating a crime that had occurred on the beach and asked petitioner to raise his pants legs. Upon seeing that petitioner's legs were burned, he placed petitioner under arrest. Petitioner voluntarily walked to the police car and, after being advised of his Miranda rights, stated that he wanted to speak to an attorney. Otherwise he was silent. Later that day, when another officer again advised petitioner of his rights and asked him if he wished to talk, petitioner only stated that he wanted to speak with an attorney. After speaking with a public defender, petitioner once again declined to talk with the police.

Petitioner was charged with sexual battery, Fla.Stat.Ann. Sec. 794.011(3) (1975), and pled not guilty. He later changed his plea to not guilty by reason of insanity. He went to trial on October 15, 1975. In petitioner's opening statement to the jury, his attorney indicated that he would put the prosecution to its proof of the events and, as a defense, would produce evidence of his client's insanity.

In its case-in-chief, the prosecution called the victim, the investigating police officers, and the doctor who examined the victim shortly after the assault. Two of the officers testified that petitioner had requested a lawyer after being advised of his Miranda rights, but had otherwise remained silent. The defense made no objection to this testimony. ¹ At the close of the state's case petitioner moved for a judgment of acquittal. The court denied the motion.

The defense called two psychiatrists, Drs. Lose and Piotrowski, both of whom testified that petitioner had demonstrated classic symptoms of paranoid schizophrenia during their interviews with him. Each doctor stated that in his opinion petitioner was not able to distinguish right from wrong at the time of the alleged crime. ² Dr. Lose mentioned that he had prescribed thorazine, a drug that diminishes the symptoms of schizophrenia, for petitioner while he was in jail awaiting trial. Schizophrenics can tolerate the drug in substantial amounts; normal individuals given such dosages become extremely drowsy. Petitioner responded positively to the treatment.

In rebuttal, the state called a psychiatrist who testified that in his opinion petitioner was not a paranoid schizophrenic and was able to distinguish right from wrong at the time he committed the offense. The psychiatrist based this opinion on his examination of petitioner, conducted while petitioner was under the influence of thorazine. He testified, however, that thorazine would have made petitioner's symptoms worse rather than better. After the rebuttal, petitioner renewed his motion for a judgment of acquittal, which was denied.

In his summation to the jury, the prosecutor presented, over petitioner's objection, the following argument:

Let's go on to Officer Pilifant who took the stand, who the psychiatrists, both defense psychiatrists, never even heard about, never even talked to. He states that he saw this fellow [petitioner] on the beach and that he went up to him, talked to him, and then arrested him for the offense. The fellow voluntarily put his arms behind his back and said he would go to the car. This is supposedly an insane person under the throws [sic] of an acute condition of schizophrenic paranoia at the time. He goes to the car and the officer reads him his Mranda [sic] rights. Does he say he doesn't understand them? Does he say "What's going on?" No. He says "I understand my rights. I do not want to speak to you. I want to speak to an attorney." Again an occasion of a person who knows what's going on around his surroundings, and knows the consequences of his act. Even down--as going down the car as you recollect Officer Pilifant said he explained what Miranda rights meant and the guy said--and Mr. Greenfield [the petitioner] said "I appreciate that, thanks a lot for telling me that." And here we are to believe that this person didn't know what he was doing at the time of the act, and then even down at the station, according to Detective Jolley--He's down there. He says, "have you been read your Miranda rights?" "Yes, I have." "Do you want to talk?" "No." "Do you want to talk to an attorney?" "Yes." And after he talked to the attorney again he will not speak. Again another physical overt indication by the defendant .... So here again we must take this in consideration as to his guilt or innocence, in regards to sanity or insanity.

The jury found the petitioner guilty as charged, and the judge sentenced him to life imprisonment. Petitioner moved the court for a new trial or judgment of acquittal notwithstanding the verdict, citing the prosecutor's comment on petitioner's post-arrest silence. The court denied the motion.

Petitioner appealed his conviction to the Florida Second District Court of Appeal, contending in part that the trial court erred in denying his motion for a new trial based upon the prosecutor's use of petitioner's post-Miranda warning silence. The court affirmed the conviction. Greenfield v. State, 337 So.2d 1021 (Fla.Dist.Ct.App.1976). The Florida Supreme Court granted certiorari and remanded the case to the district court of appeal for further proceedings consistent with its decision in Clark v. State, 363 So.2d 331 (Fla.1978). ³ The district court of appeal reaffirmed its original opinion. Petitioner then filed this petition for a writ of habeas corpus in the federal district court.

After hearing evidence regarding whether Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), barred consideration of the post-arrest silence issue, the magistrate recommended to the district court that the issue not be considered barred by Wainwright v. Sykes, since the state appellate court had reached the merits of petitioner's claim, but that it be dismissed on the merits. Petitioner timely filed objections to the recommendation. The district court adopted the magistrate's recommendations and denied the petition. ⁴ This appeal followed.

II.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that the prosecutor's use of the defendant's post-arrest, post-Miranda warning silence, not as evidence of guilt, ⁵ but solely to impeach the credibility of the defendant's alibi testimony violated the due process clause of the fourteenth amendment. The Court gave two reasons for its holding. First, a defendant's silence has low probative value because it is "insolubly ambiguous." 426 U.S. at 617, 96 S.Ct. at 2244. The ambiguity arises because Miranda

require[d] 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.

Id. Second, the Miranda warnings should not be read to impose a hidden penalty on one who chooses to rely on them.

[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 [of the crime] subsequently offered at trial.

Id. at 618, 96 S.Ct. at 2245 (footnote omitted). These two concerns ⁶ provide the framework within which we must judge petitioner's claim.

The Supreme Court has placed some gloss on the right articulated in Doyle. In Doyle itself the Court noted that testimony that a defendant had remained silent would be admissible to rebut the defendant's story that he had spoken with police after his arrest. In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Court held that the admissibility of pre-arrest, pre-Miranda warning silence to impeach the defendant's testimony in a state court proceeding is a state evidentiary law question; admission of the evidence would not violate the U.S. Constitution...