Grieco v. Hall, 80-1398
| Decision Date | 13 February 1981 |
| Docket Number | No. 80-1398,80-1398 |
| Citation | 641 F.2d 1029 |
| Parties | 7 Fed. R. Evid. Serv. 1290 Louis GRIECO, Petitioner, Appellant, v. Frank A. HALL et al., Respondents, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Beth H. Saltzman, Boston, Mass., court appointed counsel, for petitioner, appellant.
Barbara A. H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Div., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Chief, Criminal Bureau, Needham, Mass., were on brief, for respondents, appellees.
Before ALDRICH, PELL * and CAMPBELL, Circuit Judges.
The petitioner, Louis Grieco, appeals pursuant to 28 U.S.C. § 2253 (1976) from a judgment of the district court, 487 F.Supp. 1193, denying his petition for a writ of habeas corpus. After a jury trial in March, 1976, Grieco was convicted of armed assault in a dwelling house and larceny of a motor vehicle and sentenced to a term of eighteen to twenty years imprisonment. The Massachusetts Appeals Court affirmed his conviction in Commonwealth v. Grieco, 5 Mass.App. 350, 362 N.E.2d 1204 (1977), ruling that the prosecutor's cross-examination of Grieco which referred to his failure to recount his exculpatory trial story to police earlier constituted harmless error in view of the overwhelming evidence of guilt. The Massachusetts Supreme Judicial Court denied further review.
The evidence presented at trial established the following scenario. On the evening of March 21, 1969, burglars broke into and robbed the McFaul residence in Quincy. Neighbors found Mrs. McFaul bound to a chair with white adhesive tape. Police officers had noticed a white van parked in front of the house earlier. Mrs. McFaul stated that she also had seen a white van. Soon after the police arrived, the McFauls' son Herbert returned home to find that his coin collection, a bureau drawer, and a red plaid suitcase were missing.
Meanwhile Officer Tobin, who was on patrol a few miles away, heard a police broadcast about the robbery and proceeded to follow a white van which he observed driving from the general direction of the robbery. At one point, Tobin pulled alongside the van and looked directly at the driver whom Tobin later identified as the defendant.
Two other police cars, also responding to the police broadcast, pursued the van for over three miles. During the chase, Officer Brady in the first car pulled alongside the van and saw the driver, whom he later identified as the defendant, pass a gun to his passenger who in turn pointed it at the officers. As they passed the intersection of Pond and the Southern Artery, Brady saw an object thrown from the van. The following morning a .38 calibre revolver, containing five live cartridges with one chamber empty, was recovered at that intersection. An officer in the second cruiser, who never lost sight of the van during the chase, also identified the defendant as the driver of the van.
When the van finally stopped in a parking lot behind a store, one person fled from the passenger side and was never apprehended. A police officer testified that the defendant emerged from the driver's side and ran to the rear of the van where he was seized. Moments later, Sergeant Laracy arrived and recited Miranda warnings to the defendant. At the police station officers found a roll of white tape (the same brand as that used to bind Mrs. McFaul), one live .38 calibre cartridge, and a coin (which Herbert McFaul identified as part of his coin collection) on the defendant. Police officers retrieved from the van a red plaid suitcase bearing the name "McFaul," a gray metal box marked "Canadian half dollars 1940-1962," and a bureau drawer containing coins and postcards addressed to the McFaul home.
The defendant did not appear when called for trial on May 6, 1970. He was arrested in Alabama in January, 1975, and returned to Massachusetts for trial. No eyewitness identification of the defendant by the McFauls was possible as McFaul was blind, and his wife had died by the time of trial.
During the Commonwealth's direct examination, Officer Laracy testified that he had asked Grieco if he wished to make a statement after receiving Miranda warnings immediately after arrest and that the defendant had answered, "No." 1 Detective Rowell testified that he had confronted Grieco with the van's owner, James Powers, at the police station after arrest, that the defendant stated that he did not know Powers, and further stated that he (Grieco) was a hitchhiker.
Grieco took the stand and presented an exculpatory version of the incident at trial. He said that he and a deceased friend, Richard Callei, had been drinking and driving around that night. The defendant testified that Callei stopped the car to go into a nearby building for some unknown reason while the defendant walked over to an alley to urinate. At that moment, Grieco testified, he saw a van drive around the corner of the alley and saw two men run from the van into the woods. Minutes later the police arrived and arrested the defendant as he was walking past the van.
The defendant further testified that when he was arrested, Officer Tobin had accused him of almost running Tobin down with the van. Grieco said that he responded that he had no idea of what Tobin was talking about. Grieco said that he later told Tobin, in response to questioning at the station, that he did not know who was driving the van, and although he had seen "somebody" run out of the van, it was too dark to identify "them." Officer Tobin testified, to the contrary, that he had not asked Grieco who the driver was.
On cross-examination the prosecutor adverted to the defendant's failure to give his exculpatory story earlier:
(After objection, the court allowed the prosecutor to repeat the question.)
The petitioner's counsel objected seasonably to each question. 2
During his closing argument the prosecutor commented on the foraminous nature of the defendant's testimony and urged the jury to conclude that Grieco's silence was inconsistent with innocence:
And what about the Callei story? Does that make sense? He disappears. Does he tell the police about Callei? Here he has just been arrested, grabbed, knocked down. They are all over him. They stand him up and put cuffs on him and shove him into a cruiser. Does he say, ?
Does that make sense to you? Incredible.
And once again, not to belabor the point, but not only at the scene but also at the police station there is no mention about his friend Callei. There is no mention that night to anybody about urinating. The first time that story was ever told and I suggest it was a story was right here when he testified on the stand the other day.
Does that make sense? Is that consistent with innocence?
Don't be fooled.
The petitioner did not object to the Government's closing argument.
The defendant alleges that the district court erred in holding that cross-examination regarding the defendant's post-arrest silence was at most harmless error. The petitioner contends that his case falls squarely within the prohibition of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), 3 against impeaching the defendant's exculpatory story told for the first time at trial by cross-examining the defendant about his failure to recount the story at the time of arrest after being given Miranda 4 warnings. The defendants in Doyle had made no post-arrest statements. 5
In Doyle, the Supreme Court held that such cross-examination violated due process. The Court reasoned that 426 U.S. at 617, 96 S.Ct. at 2244 (footnote omitted). The Court also recognized that Miranda warnings convey the implied assurance that "silence will carry no penalty." Id. at 618, 96 S.Ct. at 2245.
Doyle, however, does not establish a rule which gives rise to constitutional error in every case in which the prosecutor refers to the defendant's post-arrest silence. The Court noted, for example, that inquiry into post-arrest silence would be permissible to contradict a defendant's trial testimony of an exculpatory version of events and claim that the same story had been told upon arrest. This use of silence does not directly impeach the exculpatory story, but instead challenges the defendant's trial version of post-arrest behavior. 426 U.S. at 619 n.11, 96 S.Ct. at 2245 n.11.
Several courts have held inquiry into post-arrest silence not to be error where the prosecutor was not seeking to impeach the exculpatory story, but rather was challenging the defendant's trial testimony regarding post-arrest behavior. In United States v. Mavrick, 601 F.2d 921 (7th Cir. 1979), for example, the court ruled that prosecutorial questioning regarding the defendant's failure to explain his illegal conduct to authorities upon arrest was not error since the defendant himself had, on direct examination, implied that given...
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