People v. Cole

• Decision Date: 05 June 1978
• Docket Number: No. C-1341,C-1341
• Citation: 584 P.2d 71,195 Colo. 483
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Petitioner, v. Doyle Kenneth COLE, Defendant-Respondent.
• Court: Colorado Supreme Court

Page 71

584 P.2d 71

195 Colo. 483

The PEOPLE of the State of Colorado, Plaintiff-Petitioner, v. Doyle Kenneth COLE, Defendant-Respondent.

No. C-1341.

Supreme Court of Colorado, En Banc.

June 5, 1978.

Opinion and Dissenting Opinions Adhered To On Rehearing

Granted Sept. 18, 1978.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Deborah L. Bianco, Asst. Atty. Gen., J. Stephen Phillips, Chief, Crim. App. Section, David H. Zook, Deputy Dist. Atty., Denver, for plaintiff-petitioner.

Walter L. Gerash, P. C., Jeffrey A. Springer, Denver, for defendant-respondent.

ERICKSON, Justice.

The defendant, Doyle Kenneth Cole, was charged in an information with the sale of a narcotic drug (heroin) and conspiracy to sell a narcotic drug with the intent to induce or aid the unlawful use or possession ("hard sale"). Trial to a jury resulted in the defendant's conviction of conspiracy to sell a narcotic drug and of the lesser included offense of "soft sale." The court of appeals reversed the convictions and ordered a new trial in People v. Cole, Colo.App., 570 P.2d 8 (1977). We granted certiorari and now affirm in part, reverse in part, and remand with directions for a new trial.

The prosecution contends on appeal that the court of appeals erred when it held that (1) a witness may not be impeached by his post-arrest silence, and (2) statements made by a defendant in connection with a withdrawn plea agreement are inadmissible for any purpose in a trial on the merits. We address the issues in the order stated.

I.

The principles applicable to impeachment by post-arrest silence were set out in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975):

"A basic rule of evidence provides that prior inconsistent statements may be used to impeach the credibility of a witness. As a preliminary matter, however, the court must be persuaded that the statements are indeed inconsistent. 3A J. Wigmore, Evidence § 1040 (Chadbourne rev. 1970). If the Government fails to establish a threshold inconsistency between silence . . . and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded."

See also Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957). In United States v. Hale, supra, the Supreme Court concluded that the defendant's silence during custodial interrogation and after Miranda ¹ warnings lacked the requisite inconsistency with exculpatory testimony offered at the trial and was, therefore, inadmissible for impeachment purposes.

The factors which cause post-arrest silence to be inherently ambiguous were discussed in United States v. Hale, supra "(A)n arrestee . . . is under no duty to speak and, as in this case, has ordinarily been advised by government authorities only moments earlier that he has a right to remain silent, and that anything he does say can and will be used against him in court.

"At the time of arrest and during custodial interrogation, innocent and guilty alike perhaps particularly the innocent may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. See Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 676 (1966). He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation exceed those of questioning before a grand jury and compound the difficulty of identifying the reason for silence."

The Court concluded that the defendant's post-arrest silence in United States v. Hale, supra, was of dubious probative value.

One year after its decision in United States v. Hale, supra, the Supreme Court held that impeachment of a defendant by his post-arrest silence violates the due process clause of the United States Constitution. U.S.Const., Amend. XIV. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Although it elevated the basis for its earlier decision to a constitutional level, the Court continued to recognize the inherent ambiguity which is tied to post-arrest silence:

"Silence in the wake of Miranda 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."

The fact that this case concerns the impeachment of a defense witness, rather than a defendant, does not relieve the prosecution of the burden of establishing that the witness' silence is inconsistent with his trial testimony. United States v. Rubin, 559 F.2d 975 (5th Cir. 1977); United States v. Williams, 464 F.2d 927 (8th Cir. 1972). Although the constitutional protections which constitute the basis for the Court's decision, in Doyle v. Ohio, supra, do not extend to witnesses, the logic of the evidentiary principles relied upon in United States v. Hale, supra, apply with equal force to defendant and witness alike. The issue in either case is whether the prosecution has established a threshold inconsistency between the witness' post-arrest silence and his trial testimony.

The defense witness impeached by post-arrest silence at the defendant's trial was Michael Johnson, a co-conspirator named in the conspiracy count of the information. When Johnson was arrested, he exercised his constitutional right against self-incrimination and remained silent. Johnson's testimony offered an explanation of the circumstances surrounding the arrests favorable to the defendant's innocence. On cross-examination, the prosecution was permitted to impeach Johnson's credibility by questions concerning his post-arrest silence and his failure to relate the story advanced at trial to the police.

A danger inherent in permitting the prosecution to impeach a witness allegedly involved in the same criminal transaction as the defendant with his post-arrest silence is that the jury will infer guilt on the part of the witness and transfer that guilt to the defendant. United States v. Rubin, supra. Under the circumstances of this case, the improper impeachment of the defense's primary witness was critical to the jury's acceptance of the defendant's theory of the case and constituted prejudicial error. Johnson's testimony, if believed, would have explained the sequence of events surrounding the criminal episode in a manner consistent with the defendant's innocence.

II.

Prior to the commencement of trial, the defendant tendered a plea of guilty to the "soft sale" of a narcotic drug, pursuant to a negotiated plea agreement. The plea was conditioned upon the defendant being granted probation. The trial court accepted the conditional plea, subject to receipt of a probation department report concerning the propriety of granting the defendant probation. Review of the probation report, however, caused the trial court not to grant probation. The defendant then withdrew his plea of guilty, and the case was set for trial.

At the time of trial, the defendant offered a theory of defense which was not consistent with his statement to the court at the providency hearing. The district attorney advised the court of his intent to use the defendant's statement at the providency hearing for impeachment purposes if the defendant testified.

The defendant, thereafter, filed a motion to suppress all statements he had made in connection with his withdrawn guilty plea. The statements sought to be suppressed were made in response to questions propounded by the trial court during the providency hearing. In an effort to establish a factual basis for the defendant's guilty plea, the court stated that it wanted "to know what the soft sale was, where it took place and what you did." The defendant provided the requested information.

At the In camera suppression hearing, the trial court ruled that the fact that the defendant had tendered and withdrawn a plea of guilty would be inadmissible for any purpose. Section 16-7-303, C.R.S.1973; Crim.P. 11(f)(6). But the trial court held that the defendant's statements at the providency hearing were voluntary and could be used for impeachment purposes if no reference was made to the context in which they had been made. The court of appeals reversed, holding that statements made in connection with a withdrawn plea of guilty are inadmissible for any purpose.

We find this issue comes within the ambit of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), wherein the Supreme Court declared:

"It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.

"The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense,...