Hoggins v. State

• Decision Date: 26 February 1997
• Docket Number: No. 95-1154,95-1154
• Citation: 689 So.2d 383
• Parties: 22 Fla. L. Weekly D522 Ronnie HOGGINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 383

689 So.2d 383

22 Fla. L. Weekly D522

Ronnie HOGGINS, Appellant, v. STATE of Florida, Appellee.

No. 95-1154.

District Court of Appeal of Florida,

Fourth District.

Feb. 26, 1997.

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, Judge.

The issue involved in this appeal is whether a prosecutor may elicit and comment on a defendant's custodial pre-Miranda ¹ silence as impeachment when the defendant testifies in his defense. ² We hold that the prosecutor may not and reverse.

This case arises from the armed robbery of a convenience store. The state's evidence showed that in the late evening of September 10, 1993, appellant reported to the police that his bike had been stolen. Later that evening appellant robbed a store where the two victims were working. During the course of the robbery, appellant pointed a gun at both victims and threatened to kill them if they didn't give him the money. He left with the cash register drawer and a cigar box containing lotto tickets. On his way out, he fired two shots at one of the victims. Around 12:30 a.m., the police observed appellant riding a bike with a cash register drawer and a cigar box. When the police put on their lights and sirens, appellant crashed his bike, picked up the drawer and box, and ran into an apartment complex. He was pursued by the police. They began a search of the area and followed a trail of lotto tickets and food stamps which led to an apartment rented by the mother of appellant's child. Consent was given to search the apartment; the police found appellant in an upstairs bedroom; they also found the cash drawer and cigar box. Appellant was handcuffed and brought downstairs, where the police had brought one of the victims to identify appellant. Appellant was then arrested but was not read his Miranda rights until he was placed in the patrol car.

In his own defense, appellant testified that he was visiting his child at the apartment. He stated that his bike was stolen off the porch, which he had reported to the police that night. Later, while he was sitting on the front step, he observed someone running through the complex who appeared to hide something in the playground area. The person fled, and appellant investigated. He found the cash drawer and cigar box and took them back to the apartment where he hid them in the attic. He then laid down in an upstairs bedroom. He denied going to the store and robbing it.

On cross-examination, the prosecutor was allowed to ask appellant why he had never told the police his story when they came to the apartment on the night of the robbery. Objection to this impeachment was overruled based on Rodriguez v. State, 619 So.2d 1031 (Fla. 3d DCA 1993). Rodriguez held that impeachment of a defendant's credibility with defendant's pre-Miranda silence is proper, relying on Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). In closing argument the prosecutor also commented extensively on appellant's failure to give his explanation at the scene. The jury convicted appellant and he then filed this appeal.

The Supreme Court addressed the use of silence as impeachment after the giving of Miranda warnings in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). There, it held that the impeachment use of a defendant's silence after Miranda warnings have been given violates due process, as it is fundamentally unfair to implicitly assure the defendant that his silence will not be used against him and then to use his silence to impeach his subsequent explanation. This was followed by Jenkins, where the Supreme Court held that the use of a defendant's pre-arrest silence to impeach the defendant's credibility when the defendant testifies does not violate the Constitution. Subsequently, in Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the Court held that the Constitution does not prohibit the use for impeachment purposes of a defendant's silence even after arrest if no Miranda warnings have been given. The Court later noted that such silence "does not rest on any implied assurance by law enforcement authorities that it will carry no penalty." Brecht, 507 U.S. at 628, 113 S.Ct. at 1716.

In Jenkins and Weir, while determining that impeachment with the defendant's pre- Miranda silence violated no federal constitutional standard, the Court left open the possibility that states could formulate their own evidentiary rules defining when silence is viewed as more probative than prejudicial. Jenkins, 447 U.S. at 240-41, 100 S.Ct. at 2130-31; Weir, 455 U.S. at 607, 102 S.Ct. at 1312. Many states have used their own evidentiary analysis to condemn the use of pre-Miranda silence as impeachment. ³ Other states have relied upon their state constitutional provisions to do so. ⁴ Some, however, have followed the Supreme Court and approved the use of impeachment as to pre-Miranda silence. ⁵ The Jenkins/Weir cases have received considerable criticism from commentators as well. ⁶ To determine whether comment on pre-Miranda silence is permissible impeachment, we look to both the Florida Constitution and our evidentiary rules.

State Constitutional Basis

Article I, section 9 of the Florida Constitution provides:

No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against himself.

In Traylor v. State, 596 So.2d 957, 961 (Fla.1992), the court recognized that under our federalist system of government, state constitutions may place more rigorous restraints on governmental conduct than what the federal Constitution imposes; however, states cannot place more restrictions on fundamental rights than the federal Constitution permits. Thus, the court held that Florida courts:

are bound under federalist principles to give primacy to our state Constitution and to give independent legal import to every phrase and clause contained therein. We are similarly bound under our Declaration of Rights to construe each provision freely in order to achieve the primary goal of individual freedom and autonomy.

Id. at 962-63 (footnote omitted).

We analyze appellant's claim under our state due process provision. With respect to impeachment by disclosure of silence, the supreme court said in Willinsky v. State, 360 So.2d 760, 762 (Fla.1978):

Impeachment by disclosure of the legitimate exercise of the right to silence is a denial of due process. It should not be material at what stage the accused was silent so long as the right to silence is protected at that stage. The language in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), although set in the context of silence at arrest, reflects a general policy.

While the Willinsky court dealt with silence at a preliminary hearing, in Webb v. State, 347 So.2d 1054 (Fla. 4th DCA 1977), we applied the same type of analysis to a situation factually similar to the instant case. Webb testified on his own behalf to an alibi and on cross-examination the prosecutor was allowed to ask why Webb had not told the police about the alibi on his arrest. Because the record did not reveal whether Miranda rights had been read, the state argued that the prosecutor was free to comment on pre-Miranda silence. To that contention, our court stated:

[W]e note that, while Miranda warnings make it even more offensive to use a person's silence upon arrest against him, the absence of such warnings does not add to nor detract from an individual's Fifth Amendment right to remain silent.... If it were otherwise, an ignorant defendant who was advised of his right to remain silent would be protected against use of his silence to impeach him at trial; but an educated, sophisticated defendant familiar with his right to remain silent who was not apprised of that right by the police would be subject to impeachment for the exercise of a known constitutionally protected right.

Id. at 1056. The court also cited to Weiss v. State, 341 So.2d 528 (Fla. 3d DCA 1977), in which the prosecutor commented on the appellant's failure to come forward to explain himself prior to his arrest when he knew he was under investigation. Weiss held that this too was a violation of the Fifth Amendment privilege. The analysis of Webb is consistent with the due process concerns of Willinsky. ⁷ Furthermore, in Lee v. State, 422 So.2d 928 (Fla. 3d DCA 1982), decided after Weir and Jenkins, the court applied Webb and Willinsky and determined that the right to remain silent is entitled to more protection under our state constitution than is permitted under the federal Constitution.

By prohibiting impeachment of a testifying defendant with custodial silence, all defendants are treated the same regardless of when Miranda warnings are administered. In this case, for instance, the officers did not administer the warnings to the appellant until after handcuffing him, formally placing him under arrest, and placing him in the police car for transport. If they had read him his rights when they placed him in custody in the bedroom, then none of his subsequent silence would be admissible under Doyle. ⁸ There must be concern that a rule allowing impeachment as to pre-Miranda silence but not as to post-Miranda silence may result in the police postponing unnecessarily the giving of the warnings, so that silence can be effectively used as impeachment if the defendant testifies.

Because we first look to our state constitution, we follow Webb and hold that the use of custodial pre-Miranda silence violates the due process...