Hayton v. Egeler, 76-2020

• Decision Date: 31 May 1977
• Docket Number: No. 76-2020,76-2020
• Citation: 555 F.2d 599
• Parties: James A. HAYTON, Petitioner-Appellant, v. Charles EGELER, Warden State Prison of Southern Michigan, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 599

555 F.2d 599

James A. HAYTON, Petitioner-Appellant, v. Charles EGELER, Warden State Prison of Southern Michigan Respondent-Appellee.

No. 76-2020.

United States Court of Appeals Sixth Circuit.

Argued Dec. 16, 1976.

Decided May 31, 1977.

William T. Street, Legal Services of Eastern Michigan, Saginaw, Mich. (Court-appointed CJA), James Edward Hayton, Prisoner, Stuart M. Israel, Ohio State University, College of Law Clinical Programs, Columbus, Ohio, for petitioner-appellant.

Frank J. Kelley, Atty. Gen. of Michigan, Robert A. Derengoski, Thomas L. Casey, Lansing, Mich., for respondent-appellee.

Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.

PECK, Circuit Judge, delivered the opinion of the Court, in which PHILLIPS, Chief Judge, joined. EDWARDS, Circuit Judge, (p. 605) filed a separate dissenting opinion.

JOHN W. PECK, Circuit Judge.

Appellant was convicted by a jury of first degree murder in the Livingston County, Michigan, Circuit Court on June 26, 1968, and was sentenced to serve a term of life imprisonment. After exhausting his state remedies, appellant filed a petition for writ of habeas corpus in the district court. Counsel was appointed, an amended petition was filed, and a hearing was held. The district court then granted appellee's motion to dismiss, denied the petition, and dismissed the action. Appellant has appealed the district court's judgment on the ground that his Fourteenth Amendment rights were violated at the state court trial when he was cross-examined regarding his silence, while in pretrial custody, about his alibi defense and when the prosecutor engaged in allegedly improper conduct. We affirm the district court's judgment.

I

The crime for which appellant has been imprisoned occurred at approximately 8:00 p. m. on January 7, 1967. Two men entered a pharmacy in Hamburg, Michigan, where the owner, George Reck, Sr., and his twenty year old son, George Reck, Jr., were at work. The two men approached the prescription counter, where the Recks were located, and one of the men asked for stomach medication. The father left the counter with that man to find the medication, while the other man, identified in court as appellant, stayed close to the son. The man identified as appellant then told the son not to make any noise because his partner had a gun on the owner. The assailants forced the Recks to lie face down behind the prescription counter and then shot them in the back. The father was killed, and the son was seriously wounded.

Although wounded, the son was able to get up and go towards the front of the store where he saw the man identified as appellant running out the front door and the other man already in a light colored Rambler station wagon. While getting into the car, the man identified as appellant saw the wounded George Reck, Jr. observing him and so, carrying a gun, he got out of the car and started back into the store. Reck, Jr. ran to the rear inside the store to the back door. There he turned and saw the man identified as appellant pointing a gun at him and firing. The son, however, made good his escape out the back door and obtained help from a nearby restaurant. The two assailants fled the scene in the Rambler. About $100 were taken in the robbery.

The Michigan State Police investigated the robbery-murder. Over the course of the next several months, George Reck, Jr. was shown more than 4,000 photographs and at least 20 individuals in an effort to identify the two assailants. In August, 1967, the photographs of men involved in an unsuccessful armed robbery in Southfield, Michigan, were shown to Reck, Jr. Included in those apprehended in that robbery attempt was the appellant. From a photograph, Reck, Jr. immediately identified appellant as one of the assailants. The same day, a line-up of eight people was held in the Oakland County, Michigan, jail, where appellant was being held for the Southfield robbery attempt. At the line-up, Reck, Jr. again identified appellant as one of the assailants. Subsequently, an arrest warrant was executed on appellant for the Hamburg murder.

Appellant was tried jointly with one Paul Willard Coleman for the murder at the Hamburg pharmacy. George Reck, Jr. made positive in-court identifications of appellant and Coleman as the two assailants. Appellant presented an alibi defense. Appellant's two sisters testified that on the night of January 7, 1967, appellant was with his three children at the home of one of the sisters. Appellant corroborated this testimony. Co-defendant Coleman also presented an alibi defense.

When appellant was on the stand, the prosecutor cross-examined him as to the time when appellant remembered where he was on the night of the murder. The prosecutor asked a single question as to whether appellant had disclosed the details of his alibi defense to the police officer in charge of the investigation when the officer and appellant had ridden together in a car during the period of appellant's pre-trial custody. Appellant said that he did not.

During the course of the trial, co-defendant Coleman's counsel characterized the robbery at the pharmacy as a "bungled" job. The prosecutor in turn made the point that appellant was a "bungler."

The jury found appellant guilty of first degree murder. Co-defendant Coleman was acquitted.

II

The district court held that there was no constitutional error committed at the state court trial in admitting the evidence that appellant did not tell the Michigan State Police about his alibi before trial. According to the district court, the appropriate approach to apply in cases of post-arrest silence was to "make an inquiry in each case whether the silence is in fact inconsistent with the trial testimony and then balance the probative value of the evidence on the issue of credibility against its potential prejudicial effect." Hayton v. Egeler, 405 F.Supp. 1133, 1149 (E.D.Mich.1975). The district court determined that the silence in the present case would not by itself be clearly impeaching but concluded that the evidence was admissible because appellant's pretrial silence about the alibi was inconsistent with the fact that appellant talked freely at the time with the Michigan State Police. Hayton v. Egeler, supra, 405 F.Supp. at 1149-50.

We cannot accept this basis for admitting the evidence of the post-arrest silence. The district court's finding of fact that appellant talked freely to the Michigan State Police was clearly erroneous. The record does not offer any support for that finding. The state court trial transcript shows only two references, made in passing by appellant's trial counsel, that could even suggest that appellant was talking to the police. More importantly, there is nothing at all in the record about the substance of any conversation between the Michigan State Police and appellant, and hence there is not sufficient information to conclude that appellant said anything which would be inconsistent with silence concerning an alibi.

Appellant contends that his constitutional rights to due process of law and against self-incrimination were violated when the prosecutor cross-examined appellant as to whether he had told the Michigan State Police about his alibi before trial. Appellant relies especially on Doyle v. Ohio and Wood v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Minor v. Black, 527 F.2d 1 (6th Cir. 1975), cert. denied, 427 U.S. 904, 96 S.Ct. 3189, 49 L.Ed.2d 1198 (1976), and United States v. Brinson, 411 F.2d 1057 (6th Cir. 1969), for authority that the prosecutor's effort to impeach appellant's alibi testimony by inquiring about his post-arrest silence was constitutionally impermissible.

The Supreme Court in Doyle v. Ohio, supra, reversed the state narcotics convictions of two defendants, who at trial presented alibi defenses about which they were silent at the time of arrest. The Court held "that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619, 96 S.Ct. at 2245. This decision was based on the ground that silence, as to an alibi, at the time of arrest was "insolubly ambiguous because of what the State is required to advise the person arrested." 426 U.S. at 613, 96 S.Ct. at 2244. The Court determined that implicit in the warning, required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that a person has a right to remain silent in a custodial interrogation was the assurance that such silence would carry no penalty.

Doyle v. Ohio, supra, however, does not mandate reversal of the district court. ¹ The Supreme Court did not reach the question before this Court in the present case, namely, whether the use, for impeachment purposes, of a petitioner's silence during the post-arrest and pretrial period violated due process guarantees. The Supreme Court explicitly stated in Doyle, supra, 426 U.S. at 616, n. 6, 96 S.Ct. at 2244 n. 6, that it was not dealing with that question because "different considerations" were involved than those in the Doyle situation.

Moreover, Doyle does not stand for the proposition that the exercise of the constitutional privilege to remain silent can never be used for discrediting a witness. ² Doyle did not overrule Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), which allowed impeachment on the basis of a defendant's exercise of a constitutional right to remain silent. The Supreme Court in United States v. Hale, 422 U.S. 171, 175, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975), discussed the situation in Raffel in the process of distinguishing it. There, a second trial was required when the first jury failed to reach a verdict. In reliance on his privilege against compulsory self-incrimination, the accused declined to testify at his first trial. At the second trial, however, he took the stand in an...