Niemeyer v. Com.
Decision Date | 06 February 1976 |
Citation | 533 S.W.2d 218 |
Parties | Joseph Edward NIEMEYER and Leory D. Tolbert, Appellants, v. COMMONWEALTH of Kentucky, Appellee. |
Court | United States State Supreme Court — District of Kentucky |
Jack Emory Farley, Public Defender, Vincent D. Giovanni, Asst. Public Defender, Frankfort, for appellants.
Ed W. Hancock, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.
The appellants, Niemeyer and Tolbert, were tried and convicted of rape and their sentences fixed at life imprisonment. The only serious question presented by their appeal concerns the admission of testimony elicited by the Commonwealth's Attorney during his questioning of the prosecutrix, the arresting officer and the appellants, and comments made during his closing argument.
Niemeyer and Tolbert were among a group of men who participated in the gangstyle rape of Karen Zerhusen, the prosecutrix. At the time of the assault she and her fiance were seated in a car parked in Kenton County. The men dragged her from the car, forced her into their automobile, and then drove to another location, where they beat and repeatedly raped her. Her fiance also was beaten by the men. The appellants acknowledged their presence at the scene of the crime but denied any participation in the rape. They claimed to have been unable to prevent their associates from raping the victim because they were 'too drunk or something.' They were arrested shortly after the crime and were identified by both the prosecutrix and her fiance as participants.
During the trial the Commonwealth's Attorney, over objection by defense counsel, questioned both the prosecutrix and the arresting officer about the appellants' failure to deny their guilt at the time of the identification procedure and at the time of the arrest:
DEFENDANTS' INTERJECTION: 'Just a minute.'
DIRECT EXAMINATION OF OFFICER GALL BY COMMONWEALTH
'A. Mister Tolbert, Mister Niemeyer, and Mister Northcutt.
The defense attorney then elicited on cross-examination from the arresting officer that actually Niemeyer and Tolbert had been unable to see or hear the prosecutrix during the identification process at the police station:
CROSS-EXAMINATION OF OFFICER GALL BY DEFENSE COUNSEL
Niemeyer and Tolbert were both questioned by the Commonwealth's Attorney about the failure to offer any exculpatory information when they were identified by the prosecutrix and when they were arrested.
'
DEFENDANTS' OBJECTION: 'We object.'
RULING OF THE COURT: 'Overruled.'
The attorney for the Commonwealth made direct reference in his closing argument to the appellants' refusal or failure to deny guilt at the time the identifications were made and at the time of arrest:
The admission of evidence pertaining to the appellants' silence in the face of accusations and the comments of the Commonwealth's Attorney constitute serious error. Appellants had been advised of their Miranda rights and were not required to make any statements concerning their guilt or innocence. The efforts of the prosecution to impeach each appellant by reference to his silence at the time of identification and at the time of arrest plainly violated his Fifth Amendment right to remain silent.
This court has said previously that the fact that an accused is under arrest and has the benefit of Miranda is sufficient to render inadmissible any accusatory statements in his presence even though he chose to remain silent. Cessna v. Commonwealth, Ky., 465 S.W.2d 283, 285 (1971). Although Cessna involved the apparent adoption of a statement by the defendant's wife, the principle of that case is applicable here. Evidence of the appellants' failure to make exculpatory statements during the identification procedure or at the time of arrest after Miranda warnings are issued cannot be admitted at trial.
The United States Supreme Court has recently addressed this problem in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975). In the exercise of its supervisory powers over the federal courts that court observed that the potential for prejudice outweighs the probative value of evidence of silence by the defendant at the time of arrest. It said also that permitting the defendant to explain the reasons for his silence is not likely to overcome the strong negative inference the jury is likely to draw from the silence. Despite the fact that the errors committed in this case involve the appellants' constitutional rights, such errors are not necessarily...
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Richter v. State
...so many times, I am compelled to conclude that prosecutors are deliberately disregarding the teaching of 'Niemeyer' (Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976) ) in the hope of finding salvation in the harmless error doctrine. In other words, they are more interested in obtaining ......
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Taylor v. Simpson
...because a criminal conviction should not be lightly overturned on the basis of the prosecutor's comments only. See Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976). The style and approach to the presentation in the courtroom is different, but we find that considering the two together, t......
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Sanborn v. Com.
...was in violation of any of his duties in anything he did in connection with this or any other representations, then Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976), should cover this situation. In that case, the prosecutor was criticized but the conviction was 3. The majority labels th......
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Dillon v. Commonwealth
...Palmore spoke eloquently to the highly important role of the Commonwealth Attorney in our criminal justice system. Niemeyer v. Commonwealth, 533 S.W.2d 218, 222 (Ky.1976). The majority opinion is impervious to the broad duties of this office, which extend in unique ways, outside the court r......