Hartigan v. Com.

• Decision Date: 28 December 1999
• Docket Number: Record No. 1002-98-4.
• Citation: 522 S.E.2d 406,31 Va. App. 243
• Parties: David Edward HARTIGAN, III v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

522 S.E.2d 406

31 Va. App. 243

David Edward HARTIGAN, III v. COMMONWEALTH of Virginia.

Record No. 1002-98-4.

Court of Appeals of Virginia, Alexandria.

December 28, 1999.

Vanessa M. Antoun, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Thomas D. Bagwell, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON and ANNUNZIATA, JJ., and DUFF, Senior Judge.

BENTON, Judge.

A jury convicted David Edward Hartigan, III, of grand larceny. On appeal, Hartigan contends the trial judge erred in admitting evidence that impermissibly commented on Hartigan's exercise of his constitutional privilege against self-incrimination. He also contends that after the Commonwealth introduced in the sentencing proceeding evidence of his prior convictions, including the sentences for which he was parole eligible, the trial judge erred in refusing to instruct the jury that parole has been abolished. For the reasons that follow, we reverse the conviction and remand for a new trial.

I.

A sales clerk in the electronics section of K-Mart Department Store testified that, when he was busy serving three or four other customers, Hartigan asked about the location of a particular videotape. After he directed Hartigan to the videotapes, Hartigan removed several of the videotapes from the display case and held them while the sales clerk assisted the other customers. After waiting five to seven minutes, Hartigan walked away pushing a shopping cart containing a trash can. Upon realizing that Hartigan had not paid for the videotapes at his register, the sales clerk left the customers he was assisting and informed his manager that "somebody is taking away the tapes in a [trash] can." The sales clerk testified, however, that he did not see Hartigan place the videotapes in the trash can. He also testified that customers could pay for the videotapes at either the electronics department register or the front checkout registers.

As the manager went to the front of the store, he heard an alarm that activates if merchandise with a security tag leaves the store. The manager then went out the front door and saw a man, whom he identified as Hartigan, running across the parking lot and carrying a green trash can. He ran after Hartigan but stopped when Hartigan crossed the street. The manager then returned to the store to call the police.

Matthew Foster saw a man with a trash can walk between two cars in a parking lot across the street from the department store. When the man left that area, he was not carrying the can. Foster retrieved the trash can, saw that it contained videotapes, and called the police. At trial, he identified Hartigan as the man with the trash can.

Karen Baziluik, who was driving near the department store's parking lot, saw the manager running after a man who was carrying a trash can. She lost sight of the man when he crossed the street and ran into an alley. Baziluik drove her car around the block and followed a man who was not carrying a trash can but whom she believed to be the same man. Baziluik continued following the man, lost sight of him again, and then saw him enter a white car. She followed that car until she saw a police vehicle and reported to the police officer what she had seen. When she began to drive away, she again saw the car and followed it to a Toys-R-Us parking lot. There, she obtained the license number of the car and called the police. When she returned to her car, police officers had arrived and detained two men who had been in the car. She identified the passenger to the police officers as the person she saw running with the trash can. At trial, she identified Hartigan as that man.

A police officer testified that he went to the Toys-R-Us parking lot and arrested Hartigan as he was walking away from the white car. While Hartigan was in custody, the police brought the manager and April West, the department store's loss prevention manager, to the parking lot to identify Hartigan.

The jury convicted Hartigan of grand larceny.

II.

Hartigan contends the trial judge erred in allowing the Commonwealth to introduce at trial evidence that impermissibly commented on Hartigan's exercise of his constitutional privilege against self-incrimination. This issue arose at trial during the testimony of West, the loss prevention manager.

On direct examination, West testified that she had not witnessed the events in the store. She first saw Hartigan when the police took her to the parking lot where Hartigan was in police custody. Over Hartigan's objection, the trial judge permitted the prosecutor to ask West, "[A]t any point did [Hartigan] show you a receipt for those items?" West responded, "No, he did not."

The Fifth Amendment to the Constitution of the United States provides that "no person shall . . . be compelled in any criminal case to be a witness against himself." U.S. Const. amend V. Similarly, the Constitution of Virginia provides, in pertinent part, that a person may not "be compelled in any criminal proceeding to give evidence against himself." Va. Const. art. I, § 8. "An individual may assert this privilege whenever the government seeks to compel self-incriminating testimonial or communicative evidence." Taylor v. Commonwealth, 26 Va.App. 485, 490, 495 S.E.2d 522, 525 (1998). The main purpose behind the Fifth Amendment privilege is to prevent government compulsion of testimonial or communicative evidence. See Doe v. United States, 487 U.S. 201, 212, 108 S.Ct. 2341, 2348, 101 L.Ed.2d 184 (1988)

. Thus, the Fifth Amendment privilege protects a person "against being incriminated by his own compelled testimonial communications," Fisher v. United States, 425 U.S. 391, 409, 96 S.Ct. 1569, 1580, 48 L.Ed.2d 39 (1976), and "protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar v. United States, 406 U.S. 441, 445, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). "[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Doe, 487 U.S. at 210,

108 S.Ct. at 2347. In addition, "the Fifth Amendment privilege against self-incrimination applies to acts that imply assertions of fact." Id. at 209, 108 S.Ct. at 2347. "Nonverbal conduct of a person [may be] intended by [that person] as an assertion." Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977).

In Taylor, we held "that the government's interest in using [an accused's] prearrest silence in response to a police officer's question as substantive evidence of guilt is substantially outweighed by the burden which such practice imposes on the privilege against self-incrimination." 26 Va.App. at 499, 495 S.E.2d at 529. In Taylor, the prosecution sought to have the fact finder infer Taylor's guilt from testimony that Taylor remained silent in response to a question regarding ownership of a gun found at the scene of an accident involving Taylor. See id. at 489, 495 S.E.2d at 524. We ruled that the Commonwealth elicited testimony concerning Taylor's silence as a "tacit admission" of his guilt. Id. at 496, 495 S.E.2d at 527. We further described this use of Taylor's silence as the equivalent of compelling him to testify and as "tantamount to allowing the Commonwealth to derive an involuntary admission of guilt from the [accused]." Id. at 499, 495 S.E.2d at 529.

The Commonwealth introduced evidence that Hartigan had not produced a receipt for the stolen goods when confronted by West, whom the police brought to Hartigan while he was in police custody. The Commonwealth's question sought to prove either conduct that was equivalent to a verbal assertion of fact, i.e., that Hartigan had paid for the items, or the absence of conduct that was equivalent to failure to make the assertion. We hold that the trial judge erred by admitting the evidence because proof that Hartigan did not produce a receipt was equivalent to proving silence in the face of an accusation. That proof impermissibly burdened Hartigan's exercise of his privilege against self-incrimination. The jury clearly could have taken West's testimony as a comment on Hartigan's silence and failure to assert his innocence.

The Commonwealth argues that the privilege was not available because the person who confronted Hartigan was a private citizen. The circumstances clearly established that West's status as a private citizen is irrelevant. The evidence proved that West was taken to Hartigan by the police. Thus, the circumstances surrounding the confrontation clearly proved Hartigan was in police custody. West was asked to comment on Hartigan's conduct in the presence of the police. Hartigan had a constitutional right to choose not to make an assertion without risking that his silence or failure to make an assertion would be used against him. The privilege clearly applies in investigatory settings; it has obviously attached once an accused is in custody. See Kastigar, 406 U.S. at 444,

92 S.Ct. at 1656; United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir.1987) (comparing attachment of Sixth Amendment right to counsel only after a defendant becomes an "accused" with Fifth Amendment mandate that no "person" shall be compelled to provide incriminating evidence against himself).

The Fifth Amendment violation in this case is particularly egregious because Hartigan was in custody when West was brought to the scene. At trial, the Commonwealth sought to have the trier of fact infer Hartigan's guilt from evidence of his silence in the face of an accusation of guilt. It is an abrogation of the right to remain silent if such silence is then used against the accused at trial. This use of Hartigan's silence "cuts down on the [Fifth Amendment] privilege by making its assertion costly." Griffin v. California, 380...