Kidd v. State

Decision Date04 March 1994
Citation649 So.2d 1304
PartiesStacey KIDD v. STATE. CR 92-247.
CourtAlabama Court of Criminal Appeals

BOWEN, Presiding Judge.

The State's application for rehearing is granted. The opinion issued in this cause on December 3, 1993, is withdrawn and the following substituted therefor:

Stacey Kidd, a juvenile, was certified to stand trial as an adult for the offenses of murder and attempted murder. 1 The charges against Kidd were connected in their commission and were consolidated for trial. A jury convicted Kidd of manslaughter in connection with the murder charge and acquitted him on the attempted murder charge. He was sentenced to eighteen years' imprisonment on the manslaughter conviction. This appeal is from that conviction and sentence.

I

The appellant, Kidd, contends that the prosecutor improperly commented on his post-arrest silence and that the trial court erred in overruling his objections to those comments, in denying his motion for a mistrial based on those comments, and in failing to give curative instructions with regard to those comments.

The indictment charged that the appellant "intentionally caus[ed] the death of ... Lester Wilson by stabbing him with a knife." C.R. 7. The State's case consisted primarily of the testimony of persons who witnessed some portion of the events surrounding the killing. The pathologist who performed the autopsy on the deceased testified, as did the evidence technician who processed the scene of the stabbing. Although there was testimony by one of the lay witnesses that the appellant was arrested in the witness's home after his mother had called the police, none of the arresting officers testified. In fact, aside from the evidence technician, no police officers were called by the State.

The appellant testified in his own behalf and, on direct examination, admitted stabbing Wilson, but denied that he had an intent to kill when he did so. According to the appellant, he and Wilson had an altercation over a sum of money that he claimed Wilson had taken from him. The stabbing occurred while Wilson "was choking [him] over the bannister." R. 451. The appellant stated: "I ain't try to kill him. I [stabbed him] just to protect myself." R. 452. He testified that when he left the scene of the altercation, he took the knife he had used to stab Wilson with him and "put the knife under the bumper of a car" that was "down the block." R. 445. The appellant stated that he "later turned [him]self in to the police." R. 447.

During cross-examination of the appellant, the following occurred:

"Q. (By Mr. Stokesberry [assistant district attorney] ): Did you ever tell anybody where that knife was left?

"A. Yes.

"Q. Who did you tell?

"A. Police.

"Q. When did you tell the police?

"A. I think they asked me where did I put it at when I got to the station. And then that was the only statement that I made. They asked me where was the weapon.

"Q. And that's all you told them, where it was?

"A. Yes, sir.

"Q. Some reason you put it ... underneath the bumper?

"A. I didn't want to take it with me.

"Mr. Stokesberry: I don't have any other questions, Judge." R. 547-48 (emphasis added).

During his rebuttal closing argument, the prosecutor stated:

"I want to ask you this question. What was his testimony about the truth? What did he tell you? He said from his own mouth on the witness stand, 'I talked to the police, and all I told them was where the weapon was.' He said it. It came out of his mouth." R. 583-84.

Defense counsel objected to these comments, stating that the appellant "had a right not to talk to the police," because he had "invok[ed] his Miranda 2 rights to remain silent." R. 584 (footnote added). The trial court overruled the objection as to comments "allegedly said by the defendant to the police," but "sustain[ed] in that regard." Id. When the prosecutor sought clarification of this ruling, the trial court stated: "As to anything the defendant said he told the police, I'll let you comment on that. I would sustain as to any further regard to it." R. 584-85.

Later in his rebuttal argument, the prosecutor stated: "Now, if he wanted to tell the truth, why did he wait? I'll leave that to your determination. Use your common sense and your knowledge--." R. 585. Defense counsel again objected, making reference to proceedings in juvenile court and asserting that "the regulations are different." Id. The following then occurred:

"Mr. Stokesberry: Your Honor, I would state that his testimony from this stand was, he talked to the police and he volunteered that.

"The Court: I would overrule on that basis. You may proceed.

"Mr. Stokesberry: So use that. He wants to tell the truth, why does he wait?

"Mr. Turberville [defense counsel]: Your Honor, I object ... and I ask for a mistrial.... [The appellant] has a right to invoke his right to remain silent, and that cannot be commented on by the prosecution. And he has no duty to give any evidence, to give any testimony.... So I ask for a mistrial, and in lieu of that I ask for a curative instruction and ask that that total line be disregarded by the good jury.

"The Court: Well, I'm going to overrule the motion for a mistrial, and I'll address this matter in the Court's charge to the jury. So, I'll give a curative instruction." R. 585-87.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that "the Due Process Clause of the Fourteenth Amendment" is violated when a prosecutor uses a defendant's "silence, at the time of arrest and after receiving Miranda warnings," "to impeach [the] defendant's exculpatory story [that is] told for the first time at trial." 426 U.S. at 619, 611, 96 S.Ct. at 2245, 2241. As the Court stated:

"Silence in the wake of these [Miranda ] warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, ... post-arrest silence [after the Miranda warnings have been given] is insolubly ambiguous because of what the State is required to advise the person arrested.... Moreover, while 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."

426 U.S. at 617-18, 96 S.Ct. at 2244-45. Subsequent decisions of the Supreme Court "confirm that 'Doyle rests on "the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." ' " Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102, 3107, 97 L.Ed.2d 618 (1987).

However, the Supreme Court has "consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him." Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 1311, 71 L.Ed.2d 490 (1982). In state prosecutions, Doyle does not apply "[i]n the absence of the sort of affirmative assurances embodied in the Miranda warnings." Fletcher v. Weir, 455 U.S. at 607, 102 S.Ct. at 1312. "Thus, the key to the exclusionary rule of Doyle is the giving of Miranda warnings." Sulie v. Duckworth, 689 F.2d 128, 132 n. 1 (7th Cir.1982) (Cudahy, J., dissenting), cert. denied, 460 U.S. 1043, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983).

At trial, Zonovia Weaver testified that the appellant was arrested at her house on the afternoon of May 4, 1991. While there was no testimony as to whether anyone had informed the appellant of his Miranda rights, there is a notification of rights form signed by the appellant in the record. C.R. 23. This form contains the "juvenile Miranda warnings," see Rule 11(A), A.R.Juv.P., and is dated "May 4, 1991 Time 12:10 PM." C.R. 23. We are unable to determine from the record whether the appellant was notified of his rights before or after making the statement concerning the location of the knife.

The timing of the appellant's statement is crucial because the Fifth Amendment forbids only comment upon a defendant's post-arrest, post-Miranda silence. Doyle v. Ohio, supra. There is no prohibition against comment on a defendant's pre-arrest, pre-Miranda silence. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Ex parte Pippens, 621 So.2d 961 (Ala.1993); Donahoo v. State, 647 So.2d 24 (Ala.Cr.App.1994). *

Furthermore, Doyle only prohibits the prosecutor's making the defendant's silence the subject of comment. "[A] defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent." Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980). Therefore, if the accused makes a post-Miranda statement, any inconsistency between that statement and the defendant's trial testimony may fairly be made the subject of comment by the prosecutor. Anderson v. Charles, 447 U.S. at 408, 100 S.Ct. at 2182; Reeves v. State, 591 So.2d 566, 569 (Ala.Cr.App.1991); Bogan v. State, 529 So.2d 1029, 1030 (Ala.Cr.App.1988); Bradley v. State, 494 So.2d 750, 767 (Ala.Cr.App.1985), affirmed, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987).

We cannot determine from the record before us the sequence of or the circumstances surrounding (1) the appellant's statement about the location of the knife, (2) the appellant's notification of his Miranda rights, and (3) the appellant's decision to make no further statements. This cause is therefore remanded and the trial court is directed to conduct a hearing to determine the order in which these events occurred and the circumstances surrounding these events.

If the appellant made the statement about the knife before he was given his Miranda rights and then, having been warned of his right to remain silent, he invoked that right and said no...

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