Lebowitz v. Wainwright, 80-5855

• Decision Date: 15 March 1982
• Docket Number: No. 80-5855,80-5855
• Citation: 670 F.2d 974
• Parties: Walter B. LEBOWITZ, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, et al., Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 974

670 F.2d 974

Walter B. LEBOWITZ, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of

Corrections, et al., Respondent-Appellee.

No. 80-5855.

United States Court of Appeals,

Eleventh Circuit.

March 15, 1982.

Simon, Schindler & Tripp, Judith Anne Bass, Tobias Simon, Miami, Fla., for petitioner-appellant.

Paul Mendelson, Asst. Atty. Gen., Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before FAY, ANDERSON and CLARK, Circuit Judges.

FAY, Circuit Judge:

By his petition for writ of habeas corpus, the defendant invites this court to travel along a time line of existing Supreme Court decisions concerning a prosecutor's ability to comment on a defendant's silence. Specifically, we have been asked to find that a prosecutor is prohibited from questioning or commenting on the defendant's failure to provide an exculpatory explanation when confronted by police in what has been alleged to be a custodial detention prior to arrest. The facts of this case, however, do not support petitioner's premise that a custodial detention occurred prior to his arrest as we fail to detect the slightest existence of mandatory confinement. We therefore decline the petitioner's invitation. We conclude that absent the custodial detention alleged by petitioner, the facts are controlled by the recent Supreme Court decision of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), which permits impeachment of a defendant with his pre-arrest silence. The District Court's denial of habeas corpus relief is therefore affirmed.

Early on the morning of December 8, 1973, the police arrived at the home of the defendant, Walter B. Lebowitz, to execute a search warrant. The object of the search was a purse allegedly stolen by one of the defendant's clients and thought to be in the possession of the defendant. The maid met the officers at the door and permitted them to enter the house. She announced the officer's presence to Lebowitz, who met them as he descended from his upstairs bedroom.

The officers explained their presence to Lebowitz and read the search warrant to him. The defendant was not asked nor did he volunteer any information as to the location of the purse. Within the next three to five minutes the officers located the purse in a dressing room area adjacent to the upstairs bedroom. ¹ As soon as one of the officers found the purse, he brought it into the bedroom area where the defendant had been sitting. Lebowitz was immediately advised of his rights after which he was arrested.

During his trial, the prosecution called two of the police officers to testify. The first officer testified that they entered the house, encountered Mr. & Mrs. Lebowitz, and proceeded to search the defendant's bedroom and adjoining dressing rooms. On cross examination defense counsel questioned why the police officers had not asked the defendant where the purse was located. ² The second officer provided further details of the purse's discovery. Once again on cross examination, defense counsel questioned the officer as to whether the defendant had been asked the location of the purse. ³

During presentation of the defense, Lebowitz provided extensive testimony on the search and attempted to prove that the purse had been given to him by a client as partial payment for services rendered. During his direct testimony his attorney asked: "Did any of the police officers who came to the house ask you if you had a purse such as this, and if so, would you go ahead and get it for him?" The defendant answered: "If any of them would have said, 'Do you have such a purse, and if so, would you please give it to me,' I would have gone to get it." ⁴ The prosecutor then followed up on this testimony as he questioned the defendant on whether he had volunteered any help in locating the purse or volunteered the explanation which he now set forth as a defense. ⁵ At no time during the course of cross examination did defense counsel lodge an objection to this line of questioning.

In his closing argument the prosecutor made the following comment:

Here's a man, the police come to his house. Knock knock. They let them in. The maid advises him the police are here. They have a search warrant. Now, that might take you by surprise or it might take most people by surprise, but this man is a lawyer. You're dealing in his field. So, he goes down there and the police read him the warrant and they describe the stolen property and they go into the description of the purse. Now, from your common sense, from your everyday experience, what does the person whose heart is pure, who's an innocent person, a possible victim of circumstances, say at that point? Oh, my God, I got a purse like that up in my bedroom. A client gave it to me the other day as a gift. Does he say, wait a minute, fellows, I know I must have a receipt here someplace. He showed it to me. You don't have to search my house, gentlemen. I've got that purse. Let me get it for you. And, I want to give you a statement right now where I got it from, who gave it to me. And, I will stand as a witness if there's criminal charges to be brought out of this thing, and see that that man is prosecuted. Or, do you say, go ahead and search. Not from the testimony of George Foley. The Miami Beach Police said that. What do you do?

What did he say when they read the warrant to him? He invited us to go ahead and search. Now, that was very generous of Mr. Lebowitz, five policemen there with a search warrant. That was very generous of him to say go ahead and search. Are you satisfied that that's an honest man standing there? Or, is that consistent with the man who knows that he's been had, that he's been caught, that he's trapped with the evidence in his home?

Defense counsel made no objection to this comment. ⁶ The jury returned a verdict of guilty of possession of stolen property. ⁷

It is the prosecutor's cross examination and closing remarks on the defendant's failure to volunteer any information concerning the purse which serves as the basis of the constitutional violation alleged in his petition. We do not find the facts of this case support the defendant's theory that a custodial detention took place prior to his arrest. Absent such a finding, we decline to hold the comment in this case violated the defendant's fourteenth amendment right to due process. ⁸

The substance of the defendant's claim is that the cross examination and prosecutorial comment on his silence during the execution of the search warrant violated his right to fundamental fairness as mandated by the Due Process Clause of the Fourteenth Amendment. He argues that recent United States Supreme Court decisions should not be read to draw the line on constitutionally permissible comment on the basis of whether Miranda warnings were given or the actual arrest has taken place. He proposes that the "governmental action" standard set forth in the Court's most recent opinion is satisfied by the execution of the search warrant which occurred here. We do not agree.

In recent years the United States Supreme Court has provided us with two major opinions regarding the use of a defendant's silence for impeachment purposes. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1975), the Court held that use of post-arrest, post-Miranda warnings for impeachment was "fundamentally unfair and a deprivation of due process." ⁹ Id. at 618, 96 S.Ct. at 2245. Subsequently, the Court clarified the parameters of Doyle in Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Jenkins had been convicted of manslaughter in Michigan state court. During his trial he testified that he had acted in self-defense. The prosecutor attempted to impeach his credibility by questioning why he had failed to assert this story prior to his surrender to the police. ¹⁰ The Court found the facts in Jenkins clearly distinguishable from Doyle. In Jenkins "no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings." Id. at 240, 100 S.Ct. at 2130. Thus the Court found the fundamental unfairness it had detected in Doyle did not exist in Jenkins.

Lebowitz contends the facts surrounding his silence fall within a void left by the Doyle and Jenkins opinions and has provided this Court with a helpful graphic illustration. ¹¹ The facts in this case do fall somewhere between the post-arrest silence in Doyle and the pre-arrest silence in Jenkins.

In Jenkins the defendant's silence occurred prior to any contact with the police. In the present case, Lebowitz was confronted by the police in their execution of a valid search warrant. However, the silence commented upon in this case undisputedly occurred prior to the arrest of the defendant and prior to a reading of his Miranda rights. It therefore falls outside the protection set forth in Doyle.

We are cognizant of recent opinions from other jurisdictions which have sought to travel this difficult time line and have anchored their decisions along its treacherous course. See United States ex rel. Smith v. Franzen, 660 F.2d 237 (7th Cir. 1981); Weir v. Fletcher, 658 F.2d 1126 (6th Cir. 1981); People v. Conyers, 52 N.Y.2d 454, 420 N.E.2d 933, 438 N.Y.S.2d 741 (1981). In each, the facts surrounding the defendant's silence have varied causing the court's decisions to contain helpful analysis, but no definitive answer to the case before us. ¹² Nevertheless, each court has clearly delineated the point of arrest as the line of demarcation where prosecutorial comment and cross examination on the defendant's silence becomes constitutionally impermissible. Due to the variety of circumstances that may occur in the course of an arrest, we refrain from suggesting a universal answer to the question of how much "governmental action"...