Lofton v. Wainwright, 79-1230

• Decision Date: 25 June 1980
• Docket Number: No. 79-1230,79-1230
• Citation: 620 F.2d 74
• Parties: William LOFTON, Jr., Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 74

620 F.2d 74

William LOFTON, Jr., Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee.

No. 79-1230.

United States Court of Appeals Fifth Circuit.

June 25, 1980.

Tatjana Ostapoff, Chief App. Div., Asst. Public Def., 15th Judicial Circuit of Fla., West Palm Beach, Fla., for petitioner-appellant.

Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.

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

Before BROWN, TJOFLAT and GARZA, Circuit Judges.

TJOFLAT, Circuit Judge:

The sole question on appeal in this habeas corpus proceeding, 28 U.S.C. § 2254 (1976), is whether the state prosecutor violated the prohibition of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), by using the petitioner's post-arrest silence to impeach an alibi subsequently offered by the petitioner at trial. We agree with the district court's finding that no violation occurred and affirm its denial of the writ.

I

The petitioner, William Lofton, Jr., was convicted in a Florida circuit court of robbing Leroy Brown of $1975. At 11:00 p. m. on the night of February 12, 1974, Brown was returning to his home in Gilford, Florida, after collecting the daily receipts from his business. When he arrived at his house, he got out of his car to open the gate to the driveway. As he was unlocking the gate, two men, a driver and a passenger, drove up in a blue Volkswagen and stopped by Brown's car. The driver was identified at trial as Lofton; the record does not disclose the identity of the passenger, indicating only that he, like Lofton, was a black male. The two men exited the Volkswagen and assailed Brown. During the encounter, they obtained possession of Brown's .38 caliber Colt revolver, shot him, and took his cash receipts. As the assailants were making their get-a-way, they drove the Volkswagen into a mailbox across the street.

In addition to the foregoing, the state's evidence established that, for several weeks prior to the robbery, Lofton had been visiting some relatives in Gilford. He returned to his home in Louisiana a few days after the robbery. Meanwhile, the Indian River County Sheriff's Department had launched an investigation of the crime. Brown eventually identified Lofton as one of his two assailants and as the driver of the Volkswagen. The Florida Division of Motor Vehicles' records revealed that Lofton owned the Volkswagen. With this evidence in hand, the sheriff sent Deputies Albert J. Pensch and Doyle Stroud to Louisiana for the purpose of bringing Lofton to Florida for trial on the robbery charge.

On June 13, 1974, the deputies took Lofton into custody, read him his Miranda rights, and took him by car to the airport in New Orleans. During the drive to the airport, the deputies and Lofton discussed the robbery. Pensch asked Lofton what he and his accomplice had done with Brown's revolver, and Lofton said that they "throw'd it in the river." Lofton did not want "to get anybody else hurt or anybody hurt anymore." When asked which river, Lofton pointed to the Mississippi River, along which they were driving at the time. Lofton was asked how much money he had gotten out of the robbery. He said he did not know because he had not counted it. On further questioning he admitted that, following the robbery, he and his accomplice had driven to a trailer park, where his cousin Doris Jones lived, and had been seen there counting the money. At this point during the questioning, Lofton said he wanted to see his lawyer, and the conversation ceased.

The state rested its case after Leroy Brown had identified Lofton as one of his assailants, Lofton's ownership of the Volkswagen and its presence at the scene of the robbery had been established, ¹ and Lofton's admissions of June 13, 1974 to deputies Pensch and Stroud had been introduced. In recounting Lofton's post-arrest admissions, the deputies testified that Lofton had broken off the questioning by stating that he did not want to say anything more until he had talked to a lawyer. Lofton then took the stand in his own defense. He admitted ownership of the Volkswagen involved in the robbery but denied any participation in the crime. Lofton had an alibi at the time the robbery was in progress he was with some friends at cousin Doris Jones's trailer. The only friend who testified at trial, however, was Doris Jones, and she was a prosecution witness. She could not account for Lofton's whereabouts for much of the evening, but did recall seeing him counting some money at one point.

On direct examination, Lofton admitted that he had discussed the crime with deputies Pensch and Stroud while en route to the New Orleans airport, but he denied that he made the inculpatory statements the deputies attributed to him. He cut off any meaningful questioning about the crime, he said, by invoking his right to remain silent. On cross-examination, the prosecutor sought to make the point that Lofton had fabricated his alibi defense on the eve of trial. Lofton acknowledged that he had not mentioned his alibi to the sheriff's deputies, though given the opportunity, but rejected any notion that the alibi had been trumped up. In his summation to the jury at the close of the evidence, the prosecutor completed his attack on the alibi defense by suggesting that it had been fabricated by Lofton to avoid the damaging impact that Lofton knew his post-arrest admissions would have on the jury.

II

The petitioner contends that it was constitutionally impermissible for the prosecutor, first, to bring out the fact that the petitioner had exercised his right to terminate the post-arrest questioning, and, then, to argue to the jury that he should have disclosed his alibi to deputies Pensch and Stroud. This prosecution tactic, it is suggested, moved the jury to attach considerable importance to petitioner's exercise of his right to remain silent in weighing the credibility of his alibi and, finally, to reject the alibi altogether. This tactic, petitioner argues, falls squarely within the condemnation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We disagree.

In Doyle, the defendants, unlike Lofton in this case, said nothing to the arresting police officers who attempted to question them except that they chose to exercise their constitutional right to remain silent. Their defense that they had been framed did not come to light until trial, when the defendants took the stand and testified. On cross-examination, the prosecutor was permitted, over objection, to inquire why they had not disclosed their frame-up story to the arresting officers. The defendants were forced to say, of course, that they had stood silent when the officers sought to question them and to admit that they had withheld from the police what was, plainly, an exculpatory story. The Supreme Court considered this prosecutorial practice fundamentally unfair and condemned it in these words:

Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence 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. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

Id. at 617-18, 96 S.Ct. at 2244-45 (citation and footnotes omitted).

We simply do not have a Doyle situation in the case before us. When the police interrogation commenced, Lofton chose not to remain silent; he elected to talk. He then proceeded to make some highly incriminating admissions to the effect that he had committed the robbery, had counted out the proceeds and divided them with his accomplice, and had disposed of the revolver.

At trial, Lofton, in denying that he made these incriminating statements and in advancing the alibi, placed his testimony at complete odds with that given by deputies Pensch and Stroud. It would not have been possible for the jury to have reconciled the prosecution and defense versions of the truth in order to give credence to both. Rather, the jury was faced with the task of accepting one version or the other or, conceivably, neither. In discharging this task the jurors were entitled to every piece of evidence, save that clearly inadmissible under the constitution or the rules of evidence, which might have shed some light on the credibility of the inculpatory statements offered by the deputies, on the one hand, and Lofton's alibi, on the other. With regard to the former, the...