People v. Hardiway, 91CA1841
| Citation | 874 P.2d 425 |
| Decision Date | 18 November 1993 |
| Docket Number | No. 91CA1841,91CA1841 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charlotte HARDIWAY, Defendant-Appellant. . V |
| Court | Court of Appeals of Colorado |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Matthew S. Holman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Frances S. Brown, Chief Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Chief Judge STERNBERG.
Defendant, Charlotte Hardiway, appeals from a judgment of conviction entered upon a jury verdict finding her guilty of second degree forgery. We reverse and remand for a new trial.
The events leading to the prosecution of defendant began when a store clerk took an invoice for a furniture order, a check, and a driver's license from a woman who was identified in those documents as "Marisa McCoy." The clerk processed the check through a verification service, which reported that the check had been stolen.
The clerk contacted her office manager who called the police. The manager then obtained a description of the woman from the clerk and personally observed the woman at the front counter. The clerk continued to process the transaction as though nothing were wrong, but the woman left the store before the police arrived.
Later that same day, the office manager noticed a woman walking toward the customer service area who appeared to be the same woman she had seen at the counter earlier. This woman presented an invoice under the name of "Marisa McCoy," so the manager again called the police. When the police arrived, the manager pointed out the defendant, and the officer arrested her for investigation of fraud by check.
The office manager called the clerk to customer service to identify the defendant, and the clerk confirmed that the handcuffed defendant was the same woman who had tendered the check. The testimony is conflicting as to whether the clerk volunteered the identification, or whether the office manager or police officer asked for the identification. At trial, neither the office manager nor the clerk could identify the defendant as the same woman they saw at the counter.
Both the state and defense experts testified that none of the writing on the check was made by the defendant. The only contested fact at trial was whether the defendant was the same woman who had tendered the stolen check.
Defendant asserts the trial court erred in admitting, over objection, testimony which implicated her exercise of her right to remain silent and in allowing comment on this testimony during rebuttal closing argument. We agree.
After the defendant was arrested, she was advised of her Miranda rights. She spoke with the officer briefly, but then invoked her right to remain silent.
At the trial, defendant testified to a more detailed version of events and, during cross-examination, the prosecutor asked why she had not told the arresting officer this more elaborate version. Defense counsel objected to this line of questioning and the trial court initially sustained the objection. However, the court overruled the objection following a bench conference in which the prosecutor argued that, because the defendant had made a post-Miranda statement, she could be impeached with anything she omitted from that statement.
Prosecutorial comment that creates an inference of guilt by referring to the defendant's silence during custodial interrogation effectively penalizes the defendant for exercising a constitutional privilege. People v. Ortega, 198 Colo. 179, 597 P.2d 1034 (1979). Thus, use of an accused's post-arrest silence for impeachment purposes, after Miranda warnings have been given, violates due process of law. People v. Sandoval, 710 P.2d 1159 (Colo.App.1985).
However, a different rule applies if a defendant makes a post-Miranda statement and then testifies at trial to a different version of events. Under those circumstances, the prosecution may cross-examine the defendant on inconsistencies between the two statements. And, the prosecution also may cross-examine the defendant on omissions in the first statement insofar as such omissions are inconsistent with the defendant's testimony at trial. People v. Sandoval, supra. In People v. Quintana, 665 P.2d 605 (Colo.1983) (fn. 7), the supreme court noted that the omission of significant details from an initial statement but included in trial testimony is in the nature of a prior inconsistent statement and, therefore, a proper subject for impeachment.
Although the court in Quintana did not elaborate upon what would constitute the omission of a "significant detail," other jurisdictions have held that a defendant may be cross-examined on omissions from the first statement when the "statement fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement." Lyons v. United States, 622 A.2d 34, 39 (D.C.App.1993) (quoting E. Cleary, McCormick on Evidence § 835 at 68 (2d ed. 1972). Impeachment regarding these omissions would be proper because it is "not designed to draw meaning from silence but to elicit an explanation of the prior inconsistent statements." People v. Sandoval, supra, 710 P.2d at 1161.
We agree with the court's reasoning in United States v. Leonardi, 623 F.2d 746, 756-757 (2d Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3027, 65 L.Ed.2d 1123 (1980), where it noted that:
[In order for] prior silence concerning critical facts [to] be deemed inconsistent with later testimony which includes their purported recollection ... the failure to mention those matters must conflict with that which is later recalled. Where the belatedly recollected facts merely augment that which was originally described, the prior silence is often simply too ambiguous to have any probative force ... and accordingly is not sufficiently inconsistent to be admitted for purposes of impeachment.
Here, the defendant made two brief statements to the arresting officer: she stated that she was picking up the furniture for a friend and that she did not write any checks. At trial, the defendant testified that, at a party the week before, a woman named "Peaches," whom the defendant did not know, offered defendant's husband $100 to pick up some furniture for her. The defendant further testified that Peaches later gave her the $100 and a receipt, and that she borrowed her uncle's truck to pick up the furniture for Peaches.
Using the word "friend" in her first statement rather than arguably more accurate terms, such as "stranger," "employer," or "acquaintance," does not rise to the level of a significant detail whose omission would be impeachable under Quintana. Further, defendant's more elaborate trial testimony merely augmented her initial statement; therefore, the details omitted from her prior statement were not sufficiently inconsistent to be admitted for impeachment purposes. See United States v. Leonardi, supra.
Moreover, it is well-settled that the prosecutor could not legitimately impeach the defendant on her failure to make further statements after she invoked her right to remain silent. People v. Sandoval, supra. The defendant's initial volunteered statements did not operate to waive her right of silence nor to authorize the prosecutor's cross-examination regarding any details that she "omitted" after invoking that right. People v. Ortega, supra. See also United States v. McKinnell, 888 F.2d 669 (10th Cir.1989) ().
The admission of the defendant's post-Miranda silence cannot be considered harmless error. The prosecutor made direct use of the defendant's silence as a means of implying guilt in both cross-examination and rebuttal argument. She did more than merely allude to or unintentionally evoke testimony relating to the fact of defendant's custodial silence. See People v. Herr, 868 P.2d 1121 (Colo.App.1993). A fair reading of the record prevents us from saying with any degree of assurance that the evidence of defendant's post-arrest silence did not substantially influence the verdict or affect the fairness of the proceedings. See People v. Quintana, supra. Accordingly, the defendant was deprived of a fair trial, and a new trial must be granted.
Because the issue will arise on retrial, we address the defendant's...
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