People v. Moran

• Decision Date: 04 March 1999
• Docket Number: No. 97CA1800.,97CA1800.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Russell C. MORAN, Defendant-Appellant.
• Court: Colorado Court of Appeals

983 P.2d 143

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Russell C. MORAN, Defendant-Appellant.

No. 97CA1800.

Colorado Court of Appeals, Div. V.

March 4, 1999.

Certiorari Denied September 13, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Shawn D. Mitchell, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Russell C. Moran, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance, possession of under one ounce of marijuana, and failure to provide evidence of insurance. We affirm.

Defendant's arrest resulted from a police stop for a traffic violation. According to the testimony of the arresting officer at trial, defendant was unable to provide proof of insurance.

Upon the officer's request, defendant stepped out of the vehicle. As he opened the car door, the officer saw him push something on the dashboard that appeared to be a marijuana cigarette. When asked what it was, defendant admitted it was marijuana. At that point, the officer arrested defendant and placed him in the back seat of the patrol car.

The officer began a search of defendant's vehicle. Upon finding a baggie of marijuana, the officer returned to the patrol car and asked defendant if he knew what it was. Defendant responded that he "didn't know about that."

The officer continued his search of defendant's vehicle and found a cloth pouch. Inside were two more baggies of marijuana, a pipe, sunglasses, and two smaller baggies containing a "brown and tan" powdery substance, which proved to be methamphetamine. Once again, the officer returned to his patrol car and asked what defendant knew about these items. Defendant responded that "he didn't know where that came from."

I.

Defendant contends the trial court erred when it allowed the prosecutor to inquire during his cross-examination, and to comment in closing arguments, about supposed omissions from the statements he made to police immediately after his arrest. He argues that, even if not violative of his rights under the federal constitution, we should conclude that the references violated his rights under the Colorado constitution. We are not persuaded.

A.

Initially, we note that the People have not raised, and thus we do not address, the failure of defense counsel before trial to file a motion to suppress evidence of defendant's statements to the arresting officer. See Crim. P. 41(g). Likewise, the People have not raised, and we do not address, the failure of defense counsel at trial to object to the earlier testimony of the arresting officer concerning defendant's statements or, on appeal, to challenge that testimony.

At trial, in his own direct examination, defendant acknowledged that on the day in question he had been driving his vehicle without insurance. He further admitted telling the arresting officer that it was a marijuana "roach" on his dashboard. When the officer had asked if there was anything he wanted to say about what was in the car, defendant had responded, "I have no idea what you could find or if there's anything else in there."

Defendant's account of the events following his arrest was generally consistent with the officer's testimony, with one exception. He testified that when the officer returned to the vehicle the second time and asked about the cloth pouch and its contents, defendant "shrugged."

Defendant then explained that his house was like a "halfway house," with four or five people staying there at any one time. It was common for these people to use his vehicle. He insisted that he had no idea any marijuana or methamphetamine was in the car. He concluded his testimony by stating that he did not know who was responsible, but he did not put the drugs there.

On cross-examination, defendant repeated much of his testimony, including his statements to the arresting officer. He admitted that the cloth pouch and the sunglasses were his. He was asked, without objection, whether he had said anything to the officer about other people driving his car. He admitted that he had not. He was also asked about, and repeated, his testimony that he had merely shrugged when the officer inquired about the items found in the cloth pouch.

During closing arguments, the prosecutor argued that defendant's failure to assert at the time of his arrest that the drugs belonged to another person implied that defendant's claim was a fabrication. Defense counsel again made no objection.

B.

Because defense counsel at trial did not object to any of the prosecutor's cross-examination or the closing argument, we review both only for plain error. Walker v. People, 932 P.2d 303 (Colo.1997). Nevertheless, to the extent defendant asserts a violation of either the federal or the state constitution, we will assume without deciding that any such violation, unless harmless beyond a reasonable doubt, would require reversal. See Merritt v. People, 842 P.2d 162 (Colo.1992)

.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the United States Supreme Court held that when a defendant takes the stand, the use for impeachment purposes of silence at the time of arrest and after receiving Miranda warnings violates the Due Process Clause of the Fourteenth Amendment. The Court reasoned that implicit in the warnings is an assurance that silence will carry no penalty.

However, the Supreme Court later determined that no due process violation results when a defendant is cross-examined about post-arrest silence, so long as the defendant has not received any Miranda warnings before becoming silent. Its reasoning was that no government action induced the silence. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982).

The Supreme Court has further concluded that, when a defendant takes the stand, Doyle does not apply to cross-examination for impeachment purposes that merely involves inquiries into prior statements that are inconsistent with the defendant's testimony at trial. This includes statements made to a police officer after arrest, and even after receiving Miranda warnings. Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980); see also Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980)

; People v. Quintana, 665 P.2d 605 (fn.7)(1983) ("The failure to make any statement [at the time of arrest] should be distinguished from the situation where the accused makes a statement but omits significant details which are later included in a subsequent statement. The omission of a significant detail is in the nature of a prior inconsistent statement.").

Defendant acknowledges that the prosecutor's references during cross-examination to omissions from his post-arrest but pre-Miranda statements may not have violated his rights under the federal constitution. Defendant nevertheless asks us to adopt a broad state rule that prohibits any such reference. He points to the observation in Fletcher that states remain free to fashion their own rules of evidence regarding the extent to which post-arrest silence may be deemed to impeach a criminal defendant's own testimony. He also notes the concern expressed by our supreme court in People v. Quintana, supra,

with the inherent ambiguity of post-arrest silence.

In the alternative, defendant argues that the supposed omissions from his post-arrest statements were not so significant as to render his responses to the arresting officer inconsistent with his trial testimony. He urges that, at the least, we should adopt a rule prohibiting the use of such insignificant omissions for purposes of impeachment. Although not argued by the People on appeal, we conclude that it is unnecessary to adopt any rule applicable to the use of omissions from post-arrest statements for the general purpose of impeachment. Here, on direct examination, defendant did not merely provide an exculpatory version of the events that transpired, without any reference to his interactions with the arresting officer. Rather, he specifically testified about his statements to the officer.

In Brown v. United States, 356 U.S. 148, 154-55, 78 S.Ct. 622, 626, 2 L.Ed.2d 589, 596-97 (1958), the United States Supreme Court addressed the import of discussing a particular subject on direct examination:

If [a defendant] takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. `(H)e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.'

The extent of a defendant's waiver of the Fifth Amendment privilege resulting from testifying about particular subjects on direct examination was later summarized by the Ninth Circuit in United States v. Black, 767 F.2d 1334, 1341 (9th Cir.1985):

A defendant who testifies at trial waives his Fifth Amendment privilege and may be cross-examined on matters made relevant by his direct testimony.... The scope of the defendant's waiver is coextensive with the scope of relevant cross-examination.... Fixing the extent of cross-examination, in turn, is left to the discretion of the trial judge.... [T]he inquiry is whether `the government's questions are "reasonably related" to the subjects covered by the defendant's testimony.'

Even more recently, in People v. Sallis, 857 P.2d 572, 575 (Colo.App.1993), a division of this court succinctly stated the same conclusion:

[T]he prosecutor is not limited to a mere categorical review of the evidence testified to on direct examination. Rather, the

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